MZAPO v Minister for Immigration & Anor
[2015] FCCA 96
•13 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAPO v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 96 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – whether the correct test under s.91R was applied – whether the Tribunal failed to consider an integer of the applicant’s claim – application dismissed. |
| Legislation: Migration Act1958 |
| WZAPN v The Minister for Immigration & Border Protection (2014) FCA 947 |
| Applicant: | MZAPO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2604 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 13 January 2015 |
| Date of Last Submission: | 13 January 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 13 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karapanagiotidis |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application for leave to extend time under section 477 of the Migration Act is refused.
The amended application is dismissed.
I dissolve the injunction that was granted on 22 December 2014.
I order the applicant to pay the first respondent’s costs, which I fix in the amount of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2604 of 2014
| MZAPO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE
This is an application for leave to extend time under s.477 of the Migration Act1958 in respect of the jurisdiction conferred on the court pursuant to s.476 of the Migration Act1958 and s.77 of the Constitution.
The applicant is seeking relief in respect of that conferral of original jurisdiction of the same kind as the High Court of Australia, under s.75(5) of Chapter 3, in respect of the decision of the Refugee Review Tribunal delivered on 29 August 2014. The application for leave and substantive relief was filed on 22 December 2014.
The applicant is a citizen of Sri Lanka and applied for a protection visa on 27 March 2014, having arrived in Australia on 10 July 2012. On 21 March 2014 the delegate refused the applicant’s protection visa application and on 29 August 2014, the Tribunal affirmed the decision not to grant the application for a protection visa.
An affidavit was filed seeking to explain in part, the delay in respect of the required leave for extension of time. In this case, the hearing commenced on the basis that I would determine the merits of the leave application by reference to the substantive arguments advanced in support of the application.
An amended application was filed on 7 January 2014 and the substantive issues that are advanced in support of the merits of the challenge are summarised in ground 1:
Ground 1: The Second Respondent applied the wrong test in the application of s91R(2)(a) in its consideration of persecution arising from a threat to the applicant’s liberty.
Particulars
(a) The applicant claimed that he would suffer serious harm as a consequence of his illegal departure.
(b) The Second Respondent accepted that the applicant had left Sri Lanka illegally (para. [325]).
(c) The Second Respondent accepted that the applicant would face arrest and questioning upon return to Sri Lanka and a penalty of between 500 and 50,000 SLR (para. [341]).
(d) The Second Respondent also accepted that the applicant “may face a period of temporary detention and, while… this will be unpleasant… it is done for the purpose of enforcing a law of general application and find no intention to cause disproportionate or cruel and unusual harm to the applicant” (para. [342]).
(e) The Second Respondent did not accept that the applicant’s “period of detention while he was establishing his identity and method of departure would be any longer than any other returnee” (para. [348]).
(f) The Second Respondent was required to ask whether the (accepted) deprivation of the applicant’s liberty was on grounds and in accordance with procedures established by law, whether the detention was arbitrary, and whether the applicant was treated with humanity and respect for the inherent dignity. It erred in its failure to ask the correct question and instead by making a qualitative assessment of the nature and degree of the harm to be experienced by the applicant: WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (“WZAPN”).
Ground 2: The Second Respondent erred in its failure to assess according to law whether the applicant’s detention was pursuant to a law of general application.
Particulars
(a) The Second Respondent accepted that the applicant would be detained upon return to Sri Lanka and that the period would be unpleasant but that it was done for the purpose of enforcing a law of general application.
(b) The Second Respondent failed to consider if the law was appropriate and adapted to achieving some legitimate object of the country concerned: Applicant S v MIMA (2004) 217 CLR 387.
Ground 3: The Second Respondent failed to consider an Integer of the applicant’s claim that he was at risk of persecution as a failed asylum seeker.
Particulars
(a) The applicant claimed that he was at risk of persecution as a failed asylum seeker (para. [327]).
(b) The Second Respondent noted the claim of the applicant however failed to actually deal with the claim in paras. [324]-[342] of its decision.
(c) The Second Respondent only considered and made findings on the issue of the consequences of illegal departure and failed to assess and make findings on what, if any, risks the applicant faced as a returned failed asylum seeker.
[Note that Ground 4 was deleted]
Ground 5: The Second Respondent’s finding that the applicant was not at risk of being charged as a smuggler because the authorities would accept his account was unreasonable and/or illogical.
Particulars
(a) The applicant claimed that he was at risk of being charged as a smuggler.
(b) The Second Respondent considered this claim in paras. [309]-[316] of its decision.
(c) The Second Respondent made a finding that “if questioned and he provided the account of his departure to the Sri Lankan authorities in the same manner that he did to the Tribunal it is such a plausible account… I am of the view that it would be accepted” (para. [311]).
(d) The above findings of the Second Respondent was critical to its reasoning process in relation to this claim.
(e) The finding was contingent upon an assessment that the authorities would accept the applicant’s claim as plausible if he provided answers “in the same manner that he did to the Tribunal” and was unreasonable and/or illogical.
In relation to the Tribunal’s decision, the Tribunal identified the applicant’s relevant background.
The decision identifies that the applicant moved to Mannar District Province in 1981 and from 1981 to 1986 lived with relatives in Puttalam District. The applicant lived in an internally displaced persons centre for a month in 1996 and moved back to Puttalam District when his parents bought land and built a house, where he remained until 2000.
The applicant’s family was given land and built a house in Puttalam, where he lived from 2000 until April 2010. It is alleged that he lived at two different places from April 2010 to March 2011 for political reasons and that from March 2011 to June 2012 he lived in a rented home, but still in Puttalam District, and he left Negombo to seek asylum in June 2012.
The Tribunal in paras.50-197 summarised what the delegate found, what occurred and what evidence was given before the delegate. Specific reference was made in para.181 to the allegation of fear of consequences of the applicant’s illegal departure and that he would also face smuggling charges and be jailed for those offences.
The delegate also referred at para.186 to putting to the applicant the information that he may face interviews for identification and the nature of his departure on return. The applicant interrupted, saying that he believed he would have to appear before a magistrate in a court.
It was also put to the applicant, as referred to at para.187 in the Tribunal’s decision, that the delegate said that this appearance before a court was consistent with material before the delegate and that usually the person could obtain bail, either on their own recognisance or through the family. This material further advised that he might face a fine. The applicant contended that he could face harm or be killed.
In para.196 of the Tribunal’s decision, there’s a reference to the delegate having put to the applicant and adviser that there had been a claim of smuggling but that, from the evidence before the delegate, it seemed that no smuggling had occurred. This being the case, it appeared that he would not be accused of smuggling, as he had simply come to Australia together with five other men, none of whom were responsible for organising the boat or smuggling each other.
At para.197 it is noted that the adviser accepted that no smuggling had occurred but in the course of investigating the applicant he would be held pending an investigation as to whether or not he was a smuggler and that was the basis for any harm.
The Tribunal’s reasons set out country information including, relevantly, in paras.207-210, treatment of returnees, and in paras.211-233 under a heading ‘Application of the Law in Practice’, addressed the application of the Immigrants and Immigrants Act to the applicant and, specifically, said in paras.219 and 220 the following.
219. 3.78 For offences committed under the I & E Act, a prison sentence of up to five years and a fine of up to 200,000 Sri Lankan Rupees may be applicable. The Attorney-General’s Department advises that no one to date has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Department further advises that the Magistrates Court in Colombo has been handing out fines of around 5,000 Sri Lankan Rupees for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, has been handing out fines up to 50,000 Sri Lankan Rupees to act as a deterrent.
220. 3.79 Since November 2012, Sri Lankan irregular maritime arrivals (IMAs) returned from Australia have been charged under the I&E Act for offences related to departing Sri Lanka and remanded in police custody until they are presented to a magistrate at the first available opportunity. The International Organization for Migration (IOM) has advised DFAT that, from their experience in delivering post-arrival support for voluntary returnees from Australia, those who have departed illegally under Sri Lankan law have been arrested by the police at the airport. They have been taken by the police from the airport and presented at the Negombo Magistrates Court at the first available opportunity. The returnees have been granted bail on personal surety immediately by the magistrate. Sometimes returnees then need to wait until a family member comes to court to collect them. IOM is present with the returnee during this process.
The Tribunal found that the country of reference in this matter was Sri Lanka, at para.228, and analysed in detail the applicant’s claimed political role and alleged incidents that had occurred in relation to putting up posters and other activities and relevantly made a finding that there was an attack in February 2010 that was a single random incident without any further repercussions and found in relation to the posters that it was implausible, without more, that that activity would create a profile of a political opponent who would be hunted down and systematically beaten or killed or any serious harm and that could be pursued or continued for months or even years. There’s a finding that the fights and scuffles and the incidents relating to posters were random and based on the circumstances at that place and time and were not indicative of targeting or any systematic course of action. The Tribunal found, in para.19.2:
299. The harm that he suffered at that time was not serious when assessed against the examples of s.91R(2) and, I find, having considered his political involvement from 1999 to 2012, that he would not be involved at any greater level in the reasonably foreseeable future and, accordingly, does not face a real chance of serious harm now or in the reasonably foreseeable future.
The Tribunal turned its mind to the consideration of the claim that his profile may have given rise to cause for concern in paras.301-307:
301. His representative has submitted that his profile is enhanced because of his involvement in putting up posters of protest when General Fonseka was detained.
302. I accept, at that time in February 2010, that there was a heightened chance that anyone putting up posters in support of the former head of the UNP shortly after his arrest and detention.
303. As discussed above I find this was the basis for the attack in February 2010. However, am of the view that the attack was based on what the applicant was doing at that time, putting up posters to protest the arrest of Fonseka could be harassed or face assault in the manner that applicant has described.
304. I also accept that this was the most serious incident that applicant experienced in Sri Lanka. However, even then I find there was no subsequent action and no targeting of the applicant and the harm was not of such gravitas as to constitute persecution as envisaged under s91R.
305. Of greatest significance, however, is that this incident occurred four years ago and since there was no subsequent action even at that time there is no chance for serious harm to the applicant for that reasons now or in the reasonably foreseeable future.
306. I am satisfied, on the evidence before me that the applicant would not be involved politically at any greater level than he has in the past and, therefore find he would not face any greater chance of serious harm in the reasonably foreseeable future.
307. Having considered the applicant claims in regard to his political opinion individually and cumulatively I find that there is no real chance of serious harm to the appellant for reasons of his political opinion now or in the reasonably foreseeable future.
At paras.308 to 316, the Tribunal turned its mind to the risk of the applicant being charged as a smuggler and addressed the steps that were likely to be taken, specifically, in paras.310 and 311:
310. His role on the vessel was a shared one where five of them shared the role of sailing and navigating equally, for their own end and for no material gain.
311. If questioned and he provided the account of his departure to the Sri Lankan authorities in the same manner that he did to the Tribunal it is such a plausible account, that of a young fisherman from the West coast, who took a boat from the area, together with five others of similar background and travelled to Australia where he sought asylum as a means to remain. The boat carried no other passengers. I am of the view it would be accepted.
And the Tribunal made findings at para.315 and 316:
315. This being the case, even if the applicant was interviewed at length he was not, in fact, a smuggler nor is there any basis on which the authorities would regard him as a “smuggler”. He, together with a handful of others paid the owner of the boat and made their way to Australia as asylum seekers.
316. I find this claim to be fanciful speculation at most and give it no weight. On the evidence before me I find that the applicant does not face a real chance of being charged as a smuggler now or in the reasonably foreseeable future.
Materially, in relation to the last paragraph, the Tribunal addressed the concerns of being charged as a smuggler and found the claim to be fanciful speculation and that on the evidence the applicant did not face a real chance of being charged as a smuggler now or in the reasonably foreseeable future.
The Tribunal also addressed the risk of the applicant being seen to support Tamils and, at paras.323-324, commenced addressing the topic of the consequences of illegal departure. It was common ground that the applicant on his own account and by the action he took in leaving Sri Lanka, took a step that was unlawful. That finding was made at para.325. The Tribunal said at paras.333-335 the following:
333. The adviser submits that he will also be refused bail and that he will be interrogated for an unspecified period of time and will also be detained for an unspecified period of time.
334. The DFAT advice, cited in the delegate’s decision from the DFAT advice of July 2013, and cited above states, “no one to date has been given a custodial sentence for departing Sri Lanka illegally”.
335. I accept that the applicant, as would others who have left illegally will be assumed to have applied for and failed to be recognised as refugees and can be considered to be failed asylum seekers. The DFAT advice, in referring to these people as returnees is in regard to those who, for the most part, have failed to be granted asylum and who are returnees who have left Sri Lanka illegally.
…
337. The DFAT advice of July 2013 advises:
those who have departed illegally under Sri Lankan law have been arrested by the police at the airport. They have been taken by the police from the airport and presented at the Negombo Magistrates Court at the first available opportunity. The returnees have been granted bail on personal surety immediately by the magistrate. Sometimes returnees then need to wait until a family member comes to court to collect them. IOM is present with the returnee during this process.
The Tribunal at para.339 said the following,
339. I have carefully considered the material concerning Sri Lankan Prisons as provided by the applicant’s adviser. That material is not, for the most part, in reference to illegal departure but in regard to detention of a long term nature and for persons who have crimes in general rather the specific crime of illegal departure.
And the Tribunal continued to identify the extent of the material that it had taken into account and its preference for the material provided from the department to that put forward by the adviser in relation to the issue of illegal departure and the reason for that. The Tribunal gave greater weight to the DFAT advice and made a finding that the applicant does face arrest, questioning and penalty of between 500-50,000 SLR.
The Tribunal then found that the applicant may face a period of temporary detention and that although it was accepted this may be unpleasant, the finding was that it would be done for the purpose of enforcing a law of general application. The Tribunal also found there is no intention to cause disproportionate or cruel or unusual harm to the applicant in respect of the application of that law.
In para.347, the Tribunal found that the applicant does not face further charges of being a smuggler or an associate with the LTTE. There was a finding that the applicant’s period of detention under the general law referred to by the Tribunal while he was establishing his identity and method of departure would not be any longer than any other returnee. In para.349, the Tribunal said:
Having considered his claims individually and cumulatively, I find he does not face a real chance of serious harm for any convention reason now or in the foreseeable future.
And at para.350, the Tribunal found that his claims did not come within the criteria or any of the criteria under s.36(2A). The Tribunal then turned to the question of the complementary protection under s.36(2)(aa) in paras.352-355 and, having identified the particular test in para.355, said:
355. For the same reasons as those given above I am not satisfied that the applicant faces a real risk of significant harm for reasons of political profile, perceived smuggler, LTTE supporter or failed asylum seeker. This leave only his claim that he will suffer significant harm at the hands of the boat owner.
The Tribunal also addressed an alleged threat of harm from the owner of the boat and concluded in paras.364 and 365:
364. After considering the applicant’s claims individually and cumulatively I find there are not substantial grounds for me to believe that, as a necessary and foreseeable consequence of him being returned to Sri Lanka as the receiving country that there is a real risk of significant harm.
365. Accordingly, I find that his claims do not meet the criteria as given in s.36(2)(aa) and he can not establish that he is in need of and deserving Australia’s protection.
In relation to the first ground advanced by the applicant, this is not a case, in my opinion, where there was any qualitative assessment error of the kind identified by North J in WZAPN v The Ministerfor Immigration & Border Protection (2014) FCA 947. In my opinion, the nature of the findings in this case are materially different from what was considered by North J, where there was a finding of a real threat of arbitrary detention.
In this case, the Tribunal member clearly focused on the law that might be applied in relation to detaining the applicant, being the Immigration and Emigration Act of Sri Lanka, addressed whether that law was one of general application and made a finding to that effect. The findings made that were attacked in relation to para.348 of the Tribunal’s decision by adjectival label, but this paragraph does not reflect the whole of the reasoning, and on a fair reading of the Tribunal’s reasons, properly addressed the character of the law that would be applied for detention of the applicant. On its face, the character of that law is one which appears appropriate and adapted to a legitimate object for the benefit of the people of the State given its general application, and it is not a law that purports to have application for a Convention reason.
In these circumstances there is a material difference between this case and the finding of error that his Honour North J made in WZAPN v The Minister for Immigration. Indeed, it was expressly accepted by counsel for the applicant that if there was a finding that the Tribunal had addressed the detention as being one of a general law of application, that would not be one which fell within the construction principle identified by North J.
I also raised with counsel for the applicant the issue raised by the Minister that the criteria under s.91R was, in any event, cumulative. It was conceded that there were adverse findings that were not challenged in respect of the other criteria under s.91R that would mean if there were an error it would in any event have no consequence favourable to the applicant.
In relation to the reasoning of North J, I also raised concern as to the adjectival description of the Tribunal’s reasons as being of a qualitative kind. I identified the problem confronting the applicant was that in this case, it appeared clear that the Tribunal had addressed the character of the law by reason of which a period of detention may occur and that this distinguished the case from WZAPN.
Further the construction principle reasoning of North J appears to be founded on an assumption identified in para.44:
In taking the human rights approach, there is no place for a qualitative assessment of detention affecting the right to liberty for it to constitute an infringement of that right.
This paragraph appears to treat the threat to liberty in 91R as if the threat to liberty is the same as a right to liberty, whereas the language and meaning are clearly different. More importantly, it appears to equate, as a principle of construction, the right to liberty or freedom as if it were an absolute right above the rule of law. Under the Australian Constitution, the rule of law is a fundamental basis upon which the Constitution depends.
Entrenchment of the rule of law is clear through the work done by Chapter III of the Constitution. In effect, the Australian Constitution gives supremacy to the rule of law. It was accepted by counsel for the applicant that all human right freedoms relevantly including liberty, freedom of the press and freedom of religion are all ones subject to the rule of law and the supremacy of the rule of law. The right to liberty and freedom of the press or freedom of religion are not absolute rights; very importantly they are qualified by the supremacy of the rule of law.
To the extent that the reasoning of North J appears to equate the right to liberty as being within the meaning of s.91R, it appears to adopt a construction principle that would elevate the right of liberty above the rule of law, which I would regard as contrary to accepted and established principle of the High Court of Australia. Detention pursuant to the rule of law in another country is not a threat to the person’s liberty, unless the law is found to be arbitrary or unless the law is not appropriate and adapted to a legitimate object for the benefit of the people of the State. In any event, it does not appear to me that there is a binding principle to be extracted in relation to the construction of s.91R from the decision in WZPAN that is applicable in this case because there was no such qualitative assessment by the Tribunal.
Further, in my opinion the Minister is correct. The cumulative unchallenged findings would mean any error of construction is of no moment if the construction principle in WZPAN applied. The unchallenged cumulative findings are in any event material concerning the discretion in respect of the application to extend time, which I will address at the conclusion of these reasons.
In these circumstances, I find there was no application of the wrong test as alleged in ground 1 and that on a fair reading of the Tribunal’s decision, it properly addressed the character of the threat of the deprivation of liberty that the applicant faced in relation to s.91R.
In relation to ground 2, it is clear that the Tribunal did assess whether the detention would be pursuant to a law of general application and expressly made a finding in that regard. The alleged failure in respect of ground 2 is in my opinion without substance.
I now turn to ground 3 – that the Tribunal failed to consider an integer of the applicant’s claim that he was at risk of persecution as a failed asylum seeker. In my opinion, the Tribunal’s decision must be read as a whole. It is clear that the Tribunal turned its mind to the risk of persecution as a failed asylum seeker and made findings of fact which, it was accepted as a matter of conclusion, were adverse to ground 3. In my opinion, those finding of fact were open. The nature of the challenge advanced is an attempted merits review in respect of the findings of fact, which is not within the jurisdiction of this court, even if leave to extend time were to be granted.
Turning to ground 5 because ground 4 was withdrawn by the amended application, this is a direct challenge to findings made by the Tribunal. Although exceedingly carefully advanced with considerable diligence by counsel for the applicant, it is really a challenge to a finding of fact, and the proposition that there was an application of an erroneous question is, in my opinion, without substance. The Tribunal expressly and carefully addressed the risk of being charged as a smuggler, and it cannot be said that the finding was unreasonable or illogical given the detailed reference and analysis, to which I have referred, by the Tribunal. It was said that the Tribunal asked itself the wrong question because it failed to ask whether he was at risk of harm during the period of potential detention. In my opinion, it is clear that the Tribunal turned its mind to that potential risk of harm in the findings made.
In relation to ground 6, the submission advanced was a failure to deal with a necessary integer in respect of being subjected to significant harm in police custody as a forced returnee, particularly at the interrogation and detention stages. Again, in my opinion, this is an endeavour to reagitate the findings of fact in respect of which the Tribunal turned its mind to the full circumstances of the applicant’s claim, and there was no integer that it failed to address.
It was advanced in relation to ground 6 that there was a problem with the reasons because it somehow impermissibly referred to earlier reasons in respect of the complementary protection issue, which was separate from s.91R. It is crystal clear that the Tribunal appreciated the nature of the complementary protection claim that was advanced and addressed that claim. There is, in my opinion, no error by reason of the reference by the Tribunal to the earlier reasoning having application to the issue raised under s.36(2)(aa) of the Migration Act.
In these circumstances, in my opinion, the application for leave to extend time is not one in which I am satisfied that it is necessary in the interests of the administration of justice to make such an order as the substantive merits of the application are wanting. For the reasons that I have given, the amended application is one in respect of which the applicant would, in my opinion, clearly fail, and that is a further basis upon which it is not necessary, in the interests of the administration of justice, to make an order extending time for leave to bring proceedings under s.476.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 19 January 2015
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