DZAEG v Minister for Immigration

[2015] FCCA 971

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZAEG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 971

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – where delay in delivery of reasons and decision by tribunal – where qualitative assessment of harm upon return to Sri Lanka by tribunal – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A)

NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470

WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: DZAEG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: DNG 26 of 2014

Judgment of: Judge Jarrett

Hearing date: 14 April 2015

Date of Last Submission: 14 April 2015

Delivered at: Brisbane

Delivered on: 7 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Ms Newman

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 21 July, 2014 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 26 of 2014

DZAEG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By this application the applicant seeks to establish that a decision of a refugee review tribunal that affirmed a decision of a delegate of the first respondent to refuse him a protection visa was affected by jurisdictional error.  Absent any jurisdictional error, the tribunal’s decision cannot be challenged in this Court.

2. The application is opposed by the first respondent.  The second respondent enters a submitting appearance.

3. The applicant represented himself in these proceedings.  His grounds of review are very general.  They simply allege that the tribunal made a jurisdictional error.  No particulars of the error are given. 

4. Moreover, the applicant has not taken up the opportunity to amend his application to give more specificity or particularisation to his grounds of review.  Nor has he provided the Court with any written submissions to advance his case.  He appeared before me with the assistance of an interpreter and made oral submissions, but those oral submissions were not directed to the identification of any jurisdictional error on the part of the tribunal.  They were, in the main, directed towards the tribunal’s findings and ultimate conclusions.

5. I have the benefit of written submissions from the first respondent for which I am grateful.

6. The applicant is a citizen of Sri Lanka. The applicant arrived in Australia on 12 June, 2012 as an irregular maritime arrival.  He participated in an entry interview on 24 July, 2012 and lodged a valid application for a Protection (Class XA) visa on 10 September, 2012. The applicant made a statutory declaration on 10 September, 2012 in support of his visa application.  He provided written submissions in support of his application on 24 September, 2012. 

7. On 19 September, 2012 a delegate of the first respondent interviewed the applicant for the purposes of assessing whether he met the criteria at ss.36(2)(a) or 36(2)(aa) of the Migration Act1958 (Cth) for the grant of the relevant visa. The applicant claimed to have a well-founded fear of persecution based upon a number of matters. The applicant’s claims before the delegate were, in summary, as follows.

8. The applicant is a Tamil, a practising Hindu and a Sri Lankan national who, until departing Sri Lanka, lived in a town called Uddapu in Sri Lanka.  In 2008, the Sri Lankan Army established a military camp in Uddapu. Since then, the Army and other government authorities harassed Tamils frequently, including by conducting unreasonable and frequent house searches and identification checks, and insulting and humiliating the Tamils. The authorities also forced Tamil fishermen to obtain passes in order to fish and searched fishing boats for weapons.  The authorities carried out beatings along with the searches.

9. In about May, 2012 the applicant’s eldest brother had an encounter with the authorities while fishing which caused him to flee Sri Lanka in fear of his life. The authorities came to the applicant’s house on one occasion looking for his eldest brother, ordered his eldest brother’s return and threatened the applicant’s father and middle brother with harm if the eldest brother did not return within two days. The applicant, his father and middle brother hid at his uncle’s house for a short period before the applicant and his middle brother were able to flee Sri Lanka. The applicant’s parents remained at his uncle’s house and could not return home for fear of the authorities.

10. The applicant was once detained for two days by the authorities for failing to carry identification.  The applicant had difficulties travelling outside Uddapu, as Uddapu was surrounded by Sinhalese areas.  Once, when the applicant had been travelling by bus through one of these areas, the bus driver was stopped and told to slow down.

11. The applicant feared ‘grease men’, who would carry knives and harm people.  The applicant had seen a grease man once in around 2009, and was very scared.  He heard later that a woman had been killed.

12. If the applicant was returned to Sri Lanka, he faced harm on the basis that: the authorities would suspect that he was a supporter of the separatist group Liberation Tigers of Tamil Eelam based on his ethnicity and the fact that he is from Uddapu.  He also claimed that he faced harm because he left Sri Lanka illegally, and in doing so, disobeyed an order by the authorities.  He said he faced harm because he was a member of particular social groups, namely:

    a)he is a Tamil;

    b)he is a Tamil from the North or East of Sri Lanka;

    c)he is a Tamil from a Tamil-dominated area;

    d)he was a Tamil who had fled Sri Lanka illegally and made a claim for asylum in Australia and/or a Western country; and

    e)he was part of a group of Tamils who had fled Sri Lanka illegally in the previous 18 to 24 months and claimed asylum in other countries and would therefore be suspected to be an LTTE supporter.

13. The delegate wrote to the applicant on 5 October, 2012 to put matters to him for comment. By a decision dated 20 December, 2012 the delegate found that the applicant did not meet the criteria for the grant of a protection visa.

14. On 21 January, 2013 the applicant applied for a review of the delegate’s decision by a refugee review tribunal.  On 11 April, 2013 the applicant attended the tribunal hearing assisted by his representative and an interpreter in the Tamil language. The hearing was not completed on 11 April 2013 and was adjourned to 6 May, 2013. The applicant was assisted by his representative and an interpreter in the Tamil language at the resumed hearing.

15. The applicant’s claims before the tribunal were substantially the same as those before the delegate. There were some differences however, that ultimately the tribunal thought were important.  The main differences between the claims before the delegate and those before the tribunal were that:

    a)before the tribunal, the applicant claimed that the authorities had visited his house on two separate occasions to enquire as to his eldest brother’s whereabouts and threaten his family;

    b)during one of the occasions when the authorities visited the applicant’s house, the authorities beat members of his family with guns and threatened them with guns;

    c)the authorities took the applicant’s eldest brother’s motorcycle and when he asked for it to be returned they threatened to implicate him in a crime;

    d)the applicant’s bus was not told to “slow down” as had previously been claimed. Rather, the bus was stopped and the occupants forced to drop and roll out of the bus and run home;

    e)the applicant’s parents remained living at the family home, although the applicant later claimed that his parents were staying at various locations; and

    f)the applicant had not been detained for two days for not carrying identification as previously claimed, rather his brother was detained for this reason.

16. The tribunal affirmed the decision of the first respondent to refuse him a protection visa.  It did so because it did not think that the applicant’s claims were credible.  The tribunal did not reject the applicant’s credibility outright.  Rather, on each of the major claims that he made the tribunal assessed the applicant’s evidence, sometimes against his previous claims and sometimes against independent information available to the tribunal and it concluded that it could not accept any of them.

17. Having considered the tribunal’s reasons for decision, it is not apparent that the tribunal has made any errors, let alone jurisdictional errors in its hearing or determination of the applicant’s review. In my view, the tribunal correctly identified the relevant legislative provisions that it had to consider. It assessed the applicant for his eligibility for the grant of a protection visa against both ss.36(2)(a) and 36(2)(aa) of the Act.

18. In accordance with his duty as a model litigant, in his written submissions, the first respondent has raised a number of matters which might be thought to lead to the conclusion that the tribunal has fallen into jurisdictional error.  However, I accept the first respondent’s submissions that none of those matters amount to jurisdictional error on the part of the tribunal. 

19. The first matter raised is the delay between the hearing before the tribunal and the delivery of the tribunal’s reasons and decision.  The hearing commenced before the tribunal in April, 2013.  It resumed and was completed in May, 2013.  The tribunal’s decisions and reasons were handed down on 29 June, 2014.  As I have mentioned above, the tribunal’s decision was based upon its review of the credibility of the claims made by the applicant.  In these circumstances, and given the delay between the hearing and the final determination of the matter, it was incumbent upon the tribunal to explain why it rejected the applicant’s claims on credibility grounds.

20. The tribunal did just that.  The tribunal’s reasons contain a comprehensive narrative of the claims made by the applicant at various points along the course of his protection visa application.  The tribunal carefully identified what it considered to be material inconsistencies and variations in the applicant’s claims over time.  The tribunal explained that while it was careful not to approach those inconsistencies overzealously, there were some, clearly identified by the tribunal, which were significant.

21. There was nothing in the tribunal’s reasons for decision that would indicate that the delay in the delivery of the tribunal’s decision led to the applicant being denied the opportunity to present his case or to have his case considered.  In NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 at [5], the Chief Justice said:

    Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare. Of course, statutes of limitation impose a legislative direction that certain delays will bar proceedings; and analogous consequences may flow from the application of equitable principles. There is, however, nothing in the Act that prescribes a time limit for decisions of the tribunal, and this Court has no power to determine some such limit. A court may have power to relieve against oppressive conduct of a complainant, or a prosecutor, and delay may be a factor in the oppression. In such circumstances, the ground for relief is the oppression, not the delay. A court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself. Where delay gives rise to a ground of supervisory or appellate intervention, the remedy must be tailored to the circumstances and justice of the case. In adversarial litigation, for example, neither party may be at fault, and it may be unnecessary and unjust to visit the successful party with all the consequences that flow from having to start again.

    (citations omitted)

22. The tribunal’s reasons do not demonstrate any flaw in the process of arriving at the decision that can be reasonably attributed to the passage of time.

23. Moreover, the tribunal did not base its credibility findings on its observations of the applicant’s demeanour or behaviour.  Sometimes error can be found in credibility findings based upon such matters where there has been a delay in delivery of the relevant judgment.  That is not this case.

24. As I have already indicated the tribunal explained the basis upon which it rejected the applicant’s claims.  It did not base its decision on bland assertions of implausibility or in unexplained rejections of the applicant’s claims.  The tribunal’s decision was, in my view, reasoned, thorough and transparent.

25. Secondly, the first respondent has brought to my attention the decision of the Full Court of the Federal Court of Australia in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. In the present case, the tribunal approached the question of the serious harm that might be faced by the applicant should he be returned to Sri Lanka in the way deprecated by North J in WZAPN.  The tribunal here embarked upon a qualitative assessment of the harm to which the applicant might be subjected should he be returned to Sri Lanka.  The tribunal accepted that the applicant might be arrested and detained for a period of time in a gaol that was likely to be overcrowded and he would be held in generally in poor conditions upon his return to Sri Lanka.  However, the tribunal determined that it would be only for a matter of hours or “at most days”.  The tribunal went on to find that the applicant’s detention would be, if it occurred, undertaken pursuant to a law of general application.

26. WZAPN binds me, but I note that the High Court of Australia has granted special leave to appeal from that decision.  The appeal is yet to be heard.

27. At paragraph [48] of its decision, the tribunal said:

    48.    As I observed to the applicant at the hearing, I accept he will be charged under Sri Lankan legal provisions due to his unapproved departure from Sri Lanka (without a passport) but find these laws apply generally and without apparent discrimination or selectivity, to those who breach the provisions, with the legitimate purpose of national border integrity. Accordingly, I do not find this law’s application itself amounts to persecution. Further, as I observed at the hearing, I find credible country information (cited below) is suggestive that those who breach the law by departing illegally are generally held briefly (for hours or at most days) on remand then bailed pending hearing.

28. The finding by the tribunal that the applicant’s detention was likely to be carried out pursuant to a law of general application means that the qualitative assessment of harm by the tribunal was of no consequence: WZAPN at [46] – [53]. The harm that would befall the applicant by reason of his arrest and detention upon return to Sri Lanka would not be serious harm for a Convention reason.

Conclusion

1. In my view, the tribunal’s decision is not attended by jurisdictional error.  The tribunal’s decision cannot be challenged in this Court.  The application must be dismissed with costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 7 May, 2015.

Associate: 

Date:         7 May 2015