Dni17 v Minister for Immigration

[2018] FCCA 1705

FEDERAL CIRCUIT COURT OF AUSTRALIA

DNI17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1705

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:
Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.5H, 5J, 36

Cases cited:
BVZ16 v Minister for Immigration [2017] FCA 775
Minister for Immigration v SZQRB (2013) 210 FCR 505
SZTAL v Minister for Immigration (2017) 91 ALJR 936; [2017] HCA 34

Applicant: DNI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2488 of 2017

Judgment of: Judge Driver

Hearing date: 28 June 2018

Delivered at: Sydney

Delivered on: 28 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Zinn of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2488 of 2017

DNI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 21 July 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 21 June 2018. 

3. The applicant is a male citizen of Sri Lanka who lodged an application for a safe haven enterprise visa (SHEV) on 21 September 2015,[1] claiming to fear harm from the Sri Lankan authorities because he is a Tamil, with suspected links to the Liberation Tigers of Tamil Eelam (LTTE).

   [1] Court Book (CB) 1-39

4. In a statutory declaration provided with the SHEV application, the applicant claimed to fear harm in Sri Lanka on the basis that he would be detained, interrogated and assaulted by the Sri Lankan authorities and the army because of his imputed pro-LTTE political opinion and his Tamil ethnicity.  The applicant claimed that:

   a)in 2001, he was stopped in an army “round up” exercise, where he was accused of being an LTTE soldier and beaten;

   b)in 2004, he travelled to Qatar for work.  He returned to Sri Lanka in 2008 and claimed he was stopped and questioned about his activities in Qatar upon return;

   c)in 2008, the applicant travelled to India to avoid harm;

   d)in 2011, the applicant returned to Sri Lanka through the UNHCR.  The applicant was questioned by authorities on arrival at the airport for five hours and claimed the Sri Lankan authorities were suspicious of returnees from India and many people returning from India were arrested and questioned;

   e)the applicant claimed he was called by the Criminal Investigation Department (CID) and questioned about his activities in India and was accused of LTTE involvement;

   f)around this time, the applicant claimed some of his friends went missing and two cousins were kidnapped and arrested on suspicion of being LTTE members; and

   g)it was these events that led the applicant to depart Sri Lanka in July 2012 for Australia.[2]

   [2] CB 40-44

5. In a follow-up statement provided to the Minister’s Department dated 21 September 2015, the applicant claimed that, since his departure, the authorities had visited his family home twice to enquire about him.[3]

   [3] CB 45

The delegate

1. By a letter dated 16 November 2016, the applicant was invited to attend a protection visa (PV) interview scheduled on 6 December 2016.

2. At the PV interview, the applicant also claimed to fear harm as a consequence of overstaying his tourist visa in India, and being a failed asylum seeker who departed Sri Lanka illegally.[4]

   [4] CB 81

3. On 7 December 2016, the delegate refused to grant a SHEV to the applicant on the basis of her assessment of independent country information.[5]

   [5] CB 79-93

The Authority

1. The matter was referred to the Authority on 12 December 2016.[6]

   [6] CB 95

2. The applicant provided a statement on 26 December 2016 which addressed the delegate’s decision.[7]

   [7] CB 106-108

3. The Authority affirmed the decision under review on 21 July 2017.[8]

   [8] CB 116-130

4. The Authority found the 26 December 2016 statement to be “argument” rather than new information and considered it.[9]  With the statement, the applicant also provided a news article dated 9 December 2016 and titled “UN accepts that torture continues in Sri Lanka.”  The Authority was satisfied there were exceptional circumstances to justify considering the new information and had regard to it.[10]

   [9] CB 117, [4]

   [10] CB 117, [5]-[6]. As the Authority had regard to the “new information” this case is relevantly distinguishable from BVZ16 v Minister for Immigration [2017] FCA 775

5. The Authority accepted that the applicant had suffered the past harm he claimed,[11] but found the identity checking and questioning was indicative of the general monitoring of the Tamil civilian population during the civil war and did not “signify” an adverse interest in the applicant.[12]

   [11] CB 120-121, [12]-[17]

   [12] CB 120, [12]

6. Overall, the Authority found the applicant’s account of his experience on return to Sri Lanka from Qatar[13] and India[14] was similar to the many Sri Lankans who returned during and after the war, consistently with country information.[15]

   [13] CB 120, [13]

   [14] CB 120, [14]

   [15] CB 121, [15]

7. The Authority was not satisfied the applicant was imputed as being an LTTE member.[16]  While the Authority accepted the applicant’s cousin had been arrested on suspicion of being an LTTE member and had since disappeared, the Authority found there was no indication that this had resulted in any adverse interest in the applicant or other family members.[17]  The Authority did not accept the applicant was imputed as being an LTTE member at the time he departed Sri Lanka or that he was of adverse interest to the authorities.[18]

   [16] CB 121, [16]

   [17] CB 121, [17]

   [18] CB 121, [18]

8. The Authority accepted the authorities had visited his family twice since his departure, but noted that on both occasions they left after being advised by his mother that he was away from home. Accordingly, the Authority did not accept the applicant was of adverse interest to the authorities. The Authority accepted there continued to be arbitrary arrests perpetrated by Sri Lankan security forces but having found the applicant did not have a profile that would attract adverse interest, the Authority found there was not a real chance he would experience similar torture or harm.[19]  The Authority noted the improvement in the security situation in Sri Lanka[20]  and concluded the applicant’s fear of harm was not well-founded.[21]

   [19] CB 121, [19]

   [20] CB 122, [21]-[22]

   [21] CB 122, [22]

9. The Authority considered the applicant’s claim that he had overstayed his tourist visa in India but found there was no indication that, in doing so, he breached any Sri Lankan laws that would attract adverse attention, or that this was of interest to the Sri Lankan authorities when he returned in 2011.[22]

   [22] CB 122, [23]

10. The Authority accepted the applicant, having illegally departed Sri Lanka, would be fined,[23] questioned at the airport and charged under the Immigrants & Emigrants Act 1949 (I&E Act).[24] The Authority found this brief period of detention did not constitute the necessary level of threat to his life or liberty or significant physical harassment or ill treatment under s.5J(5) of the Migration Act or otherwise amounted to serious harm.[25] In addition, the Authority found the I&E Act was a law of general application, not discriminatorily applied, and accordingly did not amount to persecution for the purposes of s.5H(1) and s.5J(1) of the Migration Act.[26] The Authority found the applicant would not face a real chance of harm as a returning failed asylum seeker[27] and did not meet s.36(2)(a) of the Migration Act.[28]

    [23] CB 122, [24]

    [24] CB 123, [26]-[29]

    [25] CB 123, [30]

    [26] CB 123, [32]

    [27] CB 124, [33]

    [28] CB 124, [35]

11. Based on its earlier findings, and the fact that the “real chance” and “real risk” involved the same standard, the Authority also found the applicant did not face a real risk of significant harm.[29]  As the Authority had earlier concluded that the balance of the applicant’s claims did not give rise to a real risk of serious harm, it found for the same reasons, and applying Minister for Immigration v SZQRB,[30] that the applicant would not face a real risk of harm if he returned to Sri Lanka.[31]

    [29] CB 124, [38]

    [30] (2013) 210 FCR 505

    [31] CB 124, [38]

12. The Authority did not accept the treatment faced by the applicant as a person who had departed illegally amounted to significant harm.[32]  The Authority was not satisfied the applicant would face a real risk of significant harm during any possible brief period in detention as there was no intention by the Sri Lankan authorities to inflict pain or suffering or cause extreme humiliation.[33] The Authority concluded the applicant did not meet s.36(2)(aa) of the Migration Act[34] and affirmed the decision not to grant the applicant a SHEV.[35]

    [32] CB 125, [39]

    [33] CB 125, [40]

    [34] CB 125, [41]

    [35] CB 125, [42]

The current proceedings

1. These proceedings began with a show cause application filed on 4 August 2017. 

2. The applicant did not know whether he wished to rely on that application because he did not know what was in it. He acknowledged that the signature on page 4 of the application form was his. He stated that he does not read English and the contents of it were not read to him. The applicant stated that the application was prepared by a friend who speaks Tamil and, hence, could have explained its contents to him. The applicant paid $1,000 for the assistance he received. However, the person who prepared the application was unwilling or unable to assist further.

3. As the application is the only process before me which I can deal with, I have proceeded on the basis that it is the operative application.

4. The application is supported by a short affidavit filed with it, which I have received. 

5. I also have before me as evidence the court book filed on 12 September 2017.

6. At the outset of today’s hearing, the applicant sought an adjournment.  He told me that his mental state was bad and this affected his memory.  He told me that he has lost much of his memory.  I asked him what assistance he had obtained to deal with his mental issues.  He told me that he had attended counselling at Toongabbie, but had ceased going because he did not find it useful.

7. I asked the applicant whether he had received any medical treatment for his condition.  He said that he had attended a doctor, but did not want to take medication and has no medical certificate or medical opinion about his condition. 

8. Apart from exhibiting a sad demeanour, I was unable to discern myself any medical condition affecting the applicant.  He told me that his mood is unstable and that he is fearful.  In this hearing, his mood was constant.  He appeared to show a low mood.

9. I accept that the applicant was apprehensive about attending court. However, the applicant confirmed that he is currently working in a meat factory. As I told him, if he is fit to work in a meat factory, he is fit to attend court.

10. The applicant then told me that he wanted an adjournment in order to seek legal assistance.  In his application, apparently prepared by his friend on his behalf, he states that he would consult a barrister about the claims that he wished to make in these proceedings.  However, after almost eleven months, he has done nothing.

11. I refused the request for an adjournment on the bases that, first, I was not persuaded that the applicant suffers from a health condition inhibiting his capacity to attend court; secondly, he has had almost eleven months to obtain such legal assistance as he wishes and he has, in fact, received assistance from someone, who prepared the application for a fee of $1,000.

12. The applicant then expressed difficulty in hearing the interpreter booked for today’s hearing and who interpreted via telephone. As I told the applicant, the sound reproduction by telephone today was exceptionally good. The applicant then told me that he was at least partially deaf. This, apparently, was the result of his being in proximity to a bomb blast in Sri Lanka.

13. As I understand it, the applicant has a perforated ear drum or some similar difficulty with his right ear.  I asked the applicant if he had considered obtaining a hearing aid.  He responded that this had been suggested to him but he had rejected it.  He said that he is currently waiting for an operation.

14. I accept that the applicant has a hearing difficulty.  Questions and statements were repeated when the applicant indicated a difficulty in hearing or understanding.

15. I invited oral submissions from the applicant today.  He told me that he was unable to make any submissions without legal assistance.  He repeated his request for an adjournment, which I refused.

16. In his submissions in reply, the applicant again sought an adjournment, which I refused.

17. The Minister’s submissions deal adequately with the grounds of review advanced in the application.  I agree with those submissions.

18. The purported grounds in the show cause application are in narrative form.

19. In the “Grounds of application”, the applicant states he represents himself and that “he should seek a Barrister’s opinion” on whether the Authority’s decision “is fair, reasonable and lawful”.  These contentions identify no error on the part of the Tribunal and are simply statements of fact or intention.

20. Under the heading “Grounds of Appeal”, the applicant states the Authority “misconstrued or misapplied ss 5j and S36(2A) of the Migration Act 1958 (Cth) (the Act) and erred in holding that the applicant being held in poor prison conditions for a brief time did not amount to significant harm for the purpose of the Act”. The particulars refer to and extract aspects of the Authority’s findings[36] and contend that the Authority “should have held that pain or suffering is intentionally inflicted by the act or omissions of a person where a person does an act or omission knowing it is possible that pain or suffering will result”.

    [36] At CB 123, [26]

21. In substance, the applicant’s complaint reflects the alleged error discussed and resolved by the High Court in SZTAL v Minister for Immigration.[37]  In light of the High Court’s judgment in SZTAL which held[38] that “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” within the complementary protection regime under s.36(2)(aa) of the Migration Act requires the existence of an actual subjective intention by a person to inflict pain or suffering or to cause extreme humiliation, no error in the Authority’s reasoning arises and the applicant’s complaint fails.

    [37] (2017) 91 ALJR 936; [2017] HCA 34

    [38] At [26]

22. The applicant also states that he is “going to seek a barrister’s opinion” on his grounds to “determine whether any other legal errors occurred” during the Authority’s review.  He states that he “will provide all the grounds and particulars” after he obtains the barrister’s opinion and when the Court orders him to file an amended application.  He also states that he needs a copy of the “interview CDs for this purpose”.

23. Despite filing his judicial review application nearly eleven months ago on 4 August 2017, and having the benefit of orders made by consent on 16 November 2017 that afforded him the opportunity to file and serve any amended application and/or affidavit evidence by 21 December 2017 and any written submissions by 14 June 2018, the applicant has not filed any further documents or evidence in support of his case.  Again, the remaining matters included in his application are simply statements of intention and fail to identify any arguable case of error on the part of the Authority.

24. Further, as I pointed out to the applicant, I have myself considered whether there is an available argument that the Authority’s decision is affected by some jurisdictional error.

25. The Authority comprehensively considered the applicant’s claims against both the refugee and complementary protection criteria.  The conclusions reached by the Authority were open to it on the material before it.  The Authority complied with its statutory code of procedure.  No error, nor any arguable case of jurisdictional error, is identified or apparent from the Authority’s decision or the procedures it adopted.

Conclusion

1. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant inquired about his options, but did not oppose a costs order.

3. I will order that the applicant pay the first respondent’s disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       3 July 2018