MZZPF v Minister for Immigration
[2015] FCCA 630
•19 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZPF v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 630 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) |
| MZAPO v The Minister for Immigration & Anor [2015] FCCA 96 Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | MZZPF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1142 of 2013 |
| Judgment of: | Judge Street |
| Hearing date: | 19 March 2015 |
| Date of Last Submission: | 19 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr P. Rame West Side Legal |
| Solicitors for the Respondent: | Mr M. Glavac Clayton Utz |
ORDERS
The proceeding before this Court is summarily dismissed.
The costs order made by Judge Riley on 7 August 2014 is vacated.
The applicant pay the costs of the first respondent fixed in the amount of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
MLG 1142 of 2013
| MZZPF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional Writ within the Court’s jurisdiction under s.476 of the Migration Act, 1958 in respect of a decision of the Tribunal made on 26 June 2013 affirming the delegate’s decision not to grant the applicant a Protection (class XA) visa. On the return date of the application, which occurred on 20 October 2013, it identified all parties or legal representatives should attend this hearing. Default orders may be made if any party fails to attend. The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings.
This matter was returnable before this Court with the benefit of what was a proposed amended application, which raised the following ground:
The RRT has applied the incorrect test pursuant to Section 91R(2) of the Migration Act 1958 Act
Particulars
By proceeding to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91 R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection & Another [2014] FCA 947 at (30) and (45)
The original application that was filed was also patently doomed to error. The grounds were as follows:
1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
The Court informed the parties that the Court had looked at that ground and the decision of the Tribunal and was of the view that this was a matter in which it may be appropriate to consider summarily dismissing the matter.
The solicitor for the applicant identified that counsel was briefed to advance the proposed new ground identified and no other submissions were put forward in that regard, but I was informed that counsel was not available. I indicated that I was not satisfied that the matter was arguable, and unless persuaded that there was an arguable error in the decision of the Tribunal, the Court would proceed to consider whether it should summarily dismiss the matter. No other submissions were put as to why there was an arguable error in the decision of the Tribunal. It is not appropriate to grant an adjournment in a matter which was commenced on 24 July 2013 in circumstances where it is suggested that there will be further steps that would be taken, when the applicant has had ample time to take any such steps, but more importantly will be of no utility if the proceedings are doomed to failure and will unnecessarily incur further costs for the parties, and further utilisation of valuable Court time.
I take into account the principles and caution in relation to the Court summary powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, in particular, [24]-[25] and [59]-[60].
In this case the Tribunal indicated that the applicant applied for a protection visa on 13 September 2012 which was refused on 3 December 2012. The Tribunal identified the relevant law to be applied and identified the applicant’s claims and relevantly:
19. The applicant states that he was born in Udappu in Puttalam district of north-west Sri Lanka on 25 April 1995, making him just 18 years old. He is of Tamil ethnicity and Hindu religion. He was educated to year 9. His parents, older sister and younger brother are living in Udappu. The applicant provided medical records indicating his father suffers from schizophrenia. He has worked as a tailor’s assistant, a welder and repairing motorcycles. He provided copies of a birth certificate and a Sri Lanka ID card.
20. In his protection visa application, the applicant claims he was stopped and interrogated and threatened by the military on numerous occasions while walking to school or work and there were times he did not go to school or work because of these threats. He stated that his uncle, who is estranged from his family and lives with the applicant’s family, is involved in politics and supports the UNP. He claims that his uncle has been subjected to many attempted abductions by people in white vans. He claims that people with to the applicant’s house in white vans on more than 8 occasions in 2011 looking for his uncle and pointed a gun at the applicant and threatened him. In January 2012, people came again in a white van to abduct his uncle who escaped from the back of the house. The abductors threatened to take the applicant next time. The applicant was frightened and stopped going to work. His uncle arranged for him to leave Sri Lanka. After he left Sri Lanka, his mother told him that people came in a white van looking for him and his uncle. He also referred to an incident known as “greaseman” taking place in his village in about August 2011 in which Army men disguised as “devils” killed people in the village (sic).
The Tribunal conducted the hearing on 10 May 2013 and the applicant provided further written submission on 13 June 2013. The Tribunal found the applicant was a national of Sri Lanka and assessed the protection claims against Sri Lanka as his country of nationality. The Tribunal made adverse findings in relation to the applicant’s claims, relevantly as follows:
53. The Tribunal accepts that the applicant may have been verbally threatened on one occasion by persons looking for his uncle. The Tribunal is satisfied that the applicant was not otherwise harmed or targeted or threatened in Sri Lanka because of his uncle’s involvement with the UNP or for any other reason associated with his uncle. The Tribunal is satisfied that the applicant has not been involved in any political activity that may cause him to be targeted. The Tribunal does not accept that the applicant will be targeted or harm don return to Sri Lanka because of his uncle’s involvement with the UNP or for any other reason associated with his uncle.
54. The Tribunal finds that there is not a real chance the applicant will suffer serious harm in Sri Lanka now or in the reasonably foreseeable future arising from his uncle’s activities or involvement with the UNP. The Tribunal also finds that these matters do not give rise to substantial grounds for believing there is a real risk the applicant will suffer significant harm upon being returned to Sri Lanka.
…
58. The applicant did not claim to have been directly affected by the “greasemen” and he stated at the hearing that the “greasemen” problem had stopped in his village. The Tribunal is satisfied that the “grease devil” phenomenon which arose during 2011 is no longer an issue in [U]. The Tribunal does not accept that the applicant suffered any harm from the “grease devils” in the past. Further, the Army has denied any involvement with “grease devil” attacks.
59. The Tribunal finds that the applicant does not face a real chance of suffering serious harm now or in the reasonably foreseeable future from the Army arising from routine questioning or “greasemen” attacks. The Tribunal also finds that there are not substantial grounds for believing that these matters give rise to a real risk the applicant will suffer significant harm upon being returned to Sri Lanka.
60. The applicant’s written submissions of 13 June 2013 state that he fears harm because he has made asylum claim in Australia and claim that there I continuing persecution of Tamils who are suspected of supporting the LTTE and a suspicion of Tamils who have been abroad.
The Tribunal took into account the country information in respect of the Immigrants and Emigrants Act 1949, which relevantly the Tribunal said that it was satisfied applied to all persons who depart Sri Lanka illegally or attempted to depart illegally regardless of ethnicity. The Tribunal was satisfied that the terms of the law do not have a discriminatory intent or impact, and that it is not being applied selectively or in a discriminatory manner for a convention reason. These findings and the other adverse findings by the Tribunal means there is no substance in the argument of advance under s.91R, in referring to WZAPN v Minister for Immigration and Border Protection [2014] FCA 947.
The Tribunal made adverse findings in relation to the applicant’s other claims in the following paragraphs:
63. The applicant has not made any claims of an actual or imputed LTTE connection. He travelled to Australia as a minor more than 3 years after the end of the conflict and has been in Australia for about a year. The Tribunal does not accept, given the applicant’s age and the lapse of time between the end of the conflict and when he left Sri Lanka and the absence of any actual connection to the LTTE, that the applicant will be imputed with an LTTE connection or perceived as an LTTE Supporter because he made an asylum claim in Australia or has been in Australia for a period of time.
64. On the evidence before it and having regard to the findings set out above, the Tribunal finds that the applicant is not wanted by the authorities for any other reason and will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the usual questioning and procedures set out above.
65. The Tribunal finds that the applicant does not face a real chance of serious harm in the reasonably foreseeable future in Sri Lanka as a failed asylum seeker or returnee. The Tribunal also finds that these matters do not give rise to a real risk the applicant suffer significant harm upon being returned to Sri Lanka.
The Tribunal carefully identified the significance of the application of the Immigrants and Emigrants Act 1949:
74. The Tribunal is satisfied that the Immigrants and Emigrants Act 1945 is being applied to all persons who have departed Sir Lanka illegally or attempted to depart illegally, regardless of ethnicity. The Tribunal is satisfied that that the terms of the law do not have a discriminatory intent or impact and that it is not being applied selectively or in a discriminatory manner for a Convention reason.
75. The Tribunal finds that section 45 of the Immigrants and Emigrants Act 1945 is law of general application and does not give rise to persecution under the Refugees Convention.
The Tribunal identified the risk to the applicant of a period of detention for having illegally departed Sri Lanka, which was clearly a law of general application. There was no error in the decision of the Tribunal’s reasons of the kind identified in WZAPN, as the Tribunal clearly identified and addressed the character of that law. Further, the Tribunal made clear cumulative findings of the kind raised in the decision in SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2. See also MZAPO v The Minister for Immigration & Anor [2015] FCCA 96.
The Tribunal identified that the conditions of the jail, albeit poor, do not appear to give rise to significant harm under Australian law. The Tribunal made the following relevant findings:
86. The applicant has submitted that he will be at heightened risk of harm if he is detained for any period of time because of his youth. He applicant is a young adult. The evidence before the Tribunal does not indicate that the applicant’s circumstances, including his age, will give rise to a real risk of significant harm if he is detained on remand for a relatively short period of time.
87. For the reasons set out above, the Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to a real risk the applicant will suffer significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment. The Tribunal also finds that there is not a real risk the applicant will be arbitrarily killed for the reasons set out above and the death penalty does not arise on the facts.
…
89. The country information above indicates that the penalty most likely to be imposed on the applicant is a fine. That is the penalty currently being imposed on persons who have been caught in the act of illegally departing Sri Lanka and it is the likely penalty according to the lawyer acting for failed asylum seekers. A fine is also consistent with the information from the Sri Lankan AGD above that people caught up in people smuggling boat ventures are considered to be “victims” and are fined as a deterrent to trying to depart again. Based on this information, the Tribunal finds that the likelihood of a prison sentence is remote and not a real risk.
…
91. The Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka as a member of a particular group of either failed asylum seekers or returnees or persons who left Sri Lanka illegally. The Tribunal also finds that the applicant’s status as a failed asylum seeker or a returnee who may be charge with improperly departing Sri Lanka does not give rise to a real risk he will suffer significant harm upon being returned to Sri Lanka.
92. The Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka because of his imputed political opinion or as a member of a particular social group of his uncle’s family or failed asylum seekers or returnees or persons who left Sri Lanka illegally, separately or cumulatively.
93. The Tribunal finds that there are not substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there is a real risk he will suffer significant harm.
It is clear for the above reasons that the ground raised in the proposed amended application is doomed to failure. There is no utility in granting an adjournment. Further there is no utility in permitting the filing of the amended application that is doomed to failure. I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 25 March 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Summary Judgment
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