DZADU v Minister for Immigration
[2014] FCCA 2649
•17 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZADU v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2649 |
| Catchwords: MIGRATION – Judicial review – application for protection visa – applicant alleges Tribunal applied wrong test – no reviewable error found – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 SZQPA v Minister for Immigration & Anor [2012] FMCA 123 SZSFK v Minister for Immigration & Anor [2013] FCCA 7 |
| Applicant: | DZADU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | DNG 2 of 2014 |
| Judgment of: | Judge Harland |
| Hearing date: | 17 September 2014 |
| Date of Last Submission: | 17 September 2014 |
| Delivered at: | Darwin |
| Delivered on: | 17 November 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms Watson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application is dismissed pursuant to rule 16.01 of the Federal Circuit Court Rules 2001 (Cth).
That the applicant shall pay the costs of the respondents fixed at $6,646.00 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 2 of 2014
| DZADU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the Refugee Review Tribunal’s decision dated 17 January 2014 to refuse the applicant’s application for a protection visa.
The applicant’s initial application filed on 13 February 2014 did not disclose grounds for review and merely asserted generally that the Tribunal had made a jurisdictional error.
The applicant’s amended application filed on 1 July 2014 pleaded the following grounds:
a)The Tribunal erred by asking itself the wrong question about the outcome of a process instead of assessing the risk of harm to the applicant;
b)The Tribunal erred by applying the wrong test.
The Legislation
The Full Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 summarises the legislation at [65] to [72] as follows:
The Migration Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter Australia.
It provides, subject to certain exceptions that are not here relevant, that a non-citizen must not travel to Australia without a visa that is in effect: s 42(1).
The Act provides for classes of visas: s 31. Visas may be permanent or temporary: s 30. One class of visa is a protection visa: s 36(1). The criterion for a protection visa is provided for in s 36(2).
It relevantly provides:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …
Section 36(2)(a) relates to a claim for protection by a non-citizen relying upon Article 1A(2) of the Refugees Convention, which defines a refugee as a person who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a non-citizen is a person who has a well-founded fear of persecution for a Convention reason and satisfies the other criteria of Article 1A(2) of the Refugees Convention, that non-citizen will be entitled to a protection visa and therefore to remain in Australia as a lawful non-citizen.
Section 36(2)(aa) was first introduced into the Migration Act on 24 March 2012. It recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.
If a non-citizen makes a valid application for a protection visa, s 36(2) envisages the Minister will proceed in the following order. First, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations under the Refugees Convention. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen’s removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the non-citizen, subject to any rights of review, will have exhausted the non-citizen’s rights to obtain the grant of a protection visa.
Paragraphs (a) and (aa) of s 36(2) recognise that Australia has obligations to any non-citizen who satisfies one of those paragraphs to allow those non-citizens to remain in Australia free from the persecution or the harm that they would suffer by being returned to their country of nationality or any receiving country.
In order to be successful in his application for a protection visa the applicant must satisfy one of the provisions in section 36.
Ground One
The applicant filed written submissions. The applicant refers to the Tribunal findings at paragraph 58. He says that the Tribunal erred because although it found that the applicant may be arrested at the airport and his illegal departure from Sri Lanka may be investigated, the Tribunal applied the wrong test. He argued that the Tribunal failed to consider whether or not there was a real risk of harm but rather referred to it as being a possibility.
It is important to note the Tribunal’s comments in the paragraphs leading up to the paragraph the applicant complains about. At paragraph 51 the Tribunal refers to the large volume of country information it has considered. It went on to note that reports of Tamils returning to Sri Lanka being subjected to serious harm involved “overwhelmingly returnees whom the authorities already suspect of having a pro-LTTE or anti-government associations.” The Tribunal then made a finding that the government would not perceive the applicant as having any link with the LTTE and it was not satisfied that they would impute such a link to him merely because he is a Tamil failed asylum seeker. The Tribunal went on to discuss the applicant’s illegal departure from Sri Lanka and at paragraph 54 refers to the likely process of detention including that the suspects are questioned, detained and processed and presented to court for a bail hearing as soon as possible. If a suspect arrived over the weekend he or she may be held in remand for a few days. The Tribunal noted that the conditions in the prison are overcrowded and unsanitary but noted there were no reports to indicate that “authorities or others have tortured, or otherwise targeted returnees for mistreatment”.
In support of his complaint the applicant relied on the decision of Judge Driver[1] in SZQPA v Minister for Immigration & Anor [2012] FMCA 123. In that case Judge Driver found that the reviewer had erred in its approach by focusing on the likely outcome of possible detention and interrogation, rather than the process of detention and interrogation.
[1] He was a Federal Magistrate at the time of the decision.
The facts in SZQPA are quite different to the current case. In SZQPA the reviewer accepted that the applicant’s four brothers had been killed because of the imputed association with a LTTE and that the authorities had detained the applicant’s son and questioned his son about the applicant’s location.
Judge Driver referred to the fact the reviewer, having accepted that the applicant’s four brothers had been killed because of the imputed membership or association with the LTTE and that the applicant had provided assistance to the LTTE, that the applicant would be detained and interrogated upon returning to Sri Lanka. The problem was that the reviewer needed to consider whether the process of detention and interrogation would place the applicant at risk of serious harm amounting to persecution having regard to the country information and the findings made with respect to the applicant. Judge Driver found that the reviewer erred in finding that the detention and interrogation process would be benign. In light of the reviewer’s findings about the applicant’s personal circumstances in that case the reviewer erred by focusing on the likely outcome rather than the process of the possible detention and interrogation of the applicant’s case.
The applicant’s personal circumstances in this case are quite different. The Tribunal noted that the applicant had no profile as a person who may be perceived as supporting the LTTE. The Tribunal commented that the applicant came from an area where there was very little presence by the LTTE. The Tribunal also rejected the applicant’s claims about being harassed by authorities and others and the Tribunal was not satisfied given the applicant’s personal circumstances that anyone would suspect him or members of his family of having links with the LTTE. SZQPA can be distinguished from the facts in this case. It does not assist the applicant’s case. A more recent decision of Judge Driver is in SZSFK v Minister for Immigration & Anor [2013] FCCA 7. The facts in that case were similar to this case. Judge Driver found no jurisdictional error. As Judge Emmett pointed out at [39] and [40] of SZTBW v Minister for Immigration & Anor [2014] FCCA 1809 the Tribunal is the final arbiter of fact and the assessment of harm the applicant would suffer.
The Tribunal then considered whether the applicant would face the serious risk of harm upon his return to Sri Lanka as a failed asylum seeker. It is clear from paragraph 43 and the following paragraphs of the Tribunal’s decision that it did apply the right test being whether or not the applicant faced a real chance of serious harm amounting to persecution. The Tribunal specifically refers to this test at paragraph 48.
At paragraph 54 the Tribunal specifically referred to the process of detention referring to the possibility that the applicant would be questioned, detained, processed and presented to court for bail hearing and that he may be imprisoned for a few days until the bail hearing. It noted that bail was usually granted and that there was no evidence that someone in the applicant’s position would be targeted for mistreatment or torture during that detention. The Tribunal referred to the country information in reaching this finding. Although the Tribunal noted that prison conditions were poor and that the applicant may be fined these things did not amount to serious harm.
There is nothing in the applicant’s submissions which suggests that the Tribunal did not correctly apply the country information and it is clear that, contrary to the applicant’s submissions, the Tribunal did apply the correct test.
At the hearing before me the applicant represented himself and had the assistance of an interpreter. He complained that the Tribunal did not accept his argument and make a favourable decision towards him. He also complained about the Tribunal’s questions to him about him relocating. The applicant supplied a copy of the transcript of the hearing before the Tribunal. At the hearing the applicant was unable to point to any part of the transcript to support his complaints. He said that without his lawyer he was unable to point to parts of the transcript which he says support his complaint.
The applicant did not make any reference to the transcript in his written submissions. The applicant then asked for an adjournment. I refused his adjournment application because the hearing date has been in the court diary for over two months. The applicant had ample opportunity to prepare his case and it seems clear from his amended application and his written submissions that he has received some assistance in preparing his case. The applicant then said that his lawyer submitted the documents and told him that the case could not be won.
Counsel for the Minister was able to locate the portions of the transcript which referred to possible relocations. She also pointed out that the applicant filed further written submissions after the Tribunal hearing addressing relocation. The significant point however is that the Tribunal did not make any finding about relocation so whilst the Tribunal explored the issue with the applicant during the hearing, it had no impact on final decision.
As the Tribunal concluded that there was no real chance of the applicant being persecuted for one of the Convention reasons and that furthermore he was not at serious risk of harm upon his return to Sri Lanka the relocation issue fell away. If the applicant’s intention was to raise a procedural fairness complaint about this issue that must fail as it is clear that the applicant was given the opportunity and took up the responsibility to respond to that issue. It also was not part of the final outcome.
Ground 1 fails.
Ground Two
In this ground the applicant complains that the Tribunal applied the balance of probabilities test rather than applying in the real chance of harm test. The minister argues that by using the words may and possibly the tribunal has not applied the balance of probabilities test but has taken the risk to the applicant as to the length of his detention, having regard to the country information.
The potential mischief in paragraph 65 is the reference to the Sri Lankan authorities being motivated to inflict significant harm upon the applicant.
The applicant relied on the case of SZSFK v Minister for Immigration & Anor [2013] FCCA 7. In that case the Tribunal accepted that the applicant faced a real chance of harm which is not the case here. Again that case can be distinguished from this case on its facts.
There is nothing that can be inferred by paragraphs 65 and 66 of the Tribunal’s decision to support the applicant’s contention that the Tribunal applied the balance of probabilities test rather than applying in the real chance of harm test. Again the surrounding paragraphs need to be considered to place paragraph 66 in context.
Upon a reasonable reading of the paragraphs complained of it is not possible to infer that the Tribunal has applied a balance of probabilities test instead of the real chance of harm test.
Ground 2 also fails.
I will dismiss the application. The Minister seeks costs. I will make that order.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 17 November 2014
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