SZQFX v Minister for Immigration
[2016] FCCA 1222
•19 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZQFX v MINISTER FOR IMMIGRATION | [2016] FCCA 1222 |
| Catchwords: MIGRATION – International Treaties Obligations Assessment – review of decision by an officer of the Department of Immigration and Border Protection – whether the officer’s decision is affected by jurisdictional error – whether the officer denied procedural fairness to the applicant – whether the officer erred in undertaking a qualitative assessment of the nature and degree of harm that the applicant may experience – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss. 5, 46A, 91R, 198, 474 |
| Cases Cited: SZQFX v Minister for Immigration & Anor [2011] FMCA 642 Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 WZAPN v Minister for Immigration and Border Protraction [2014] FCA 947 Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 SZTEQv Minister for Immigration and Border Protection [2015] FCAFC 39 |
| Applicant: | SZQFX |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File Number: | SYG 1215 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 19 May 2016 |
| Date of Last Submission: | 19 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2016 |
REPRESENTATION
| The applicant appeared in person with the assistance of a Tamil interpreter. |
| Solicitor for the Respondents: | Ms Louise Buchanan (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1215 of 2015
| SZQFX |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of an International Treaties Obligations Assessment assessor, dated 8 April 2015.
The applicant claims to be a citizen of Sri Lanka, of Roman Catholic faith and Tamil ethnicity, who fears harm from the Sri Lankan government.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims, and a summary of the International Treaties Obligations Assessment.
Background
On 1 March 2010, the applicant arrived by boat at Christmas Island as an undocumented Irregular Maritime Arrival. As such, the applicant was subject to s.46A of the Act.
On 27 March 2010, the applicant was interviewed by the Department of Immigration and Citizenship (“the Department”) for the purpose of initial entry processing. At the initial entry interview, the applicant claimed that he was of interest to authorities in Sri Lanka and feared persecution due to his Tamil ethnicity.
On 1 May 2010, the applicant lodged a request for a Refugee Status Assessment (“the RSA”) with the Department.
On 18 June 2010, the RSA officer found that the applicant was not a person to whom Australia owed protection obligations. The RSA officer was not satisfied that the applicant would be of any interest to the Sri Lankan army, or other government agents, if he was to return to Sri Lanka. The RSA officer relied on, and referred to, various country information in support of that conclusion.
Subsequently, the applicant sought review of the RSA officer’s decision through Independent Merits Review. The Independent Merits Reviewer noted that the applicant changed his history and now claimed that he had left Sri Lanka in 1986, and additionally, that he was in a refugee camp in India for 20 years. The Independent Merits Reviewer also noted the applicant’s claim that he feared harm in Sri Lanka because his family has helped members of the Liberation Tigers of Tamil Eelam (“LTTE”).
On 11 April 2011, the Independent Merits Reviewer affirmed the RSA officer’s decision by recommending that the applicant was not a person to whom Australia owed protection obligation. The Independent Merits Reviewer rejected the applicant’s claim of a family association with the LTTE. However, the Independent Merits Reviewer did accept that the applicant was in an Indian refugee camp for 20 years.
The applicant sought judicial review of that recommendation. That application was dismissed on 26 August 2011 (see SZQFX v Minister for Immigration & Anor [2011] FMCA 642).
In preparation for the applicant’s removal from Australia, on 15 November 2011, an International Treaties Obligations Assessment was undertaken in respect of the applicant (“the First ITOA”). That assessment considered whether there were any non-refoulement issues preventing the applicant’s return to Sri Lanka, and concluded that there were none.
On 14 December 2012, the applicant sought review of the First ITOA. By consent, the decision in the First ITOA was quashed in light of the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505.
On 1 December 2014, the Department commenced a fresh International Treaties Obligations Assessment, which is the subject of the present judicial review proceeding (“the Second ITOA”).
On 8 April 2015, the officer assessing the Second ITOA (“the Assessor”) found that returning the applicant to Sri Lanka would not contravene Australia’s non-refoulement obligations.
On 4 May 2015, the applicant filed the present application in this Court seeking judicial review of the Assessor’s decision dated 8 April 2015.
Legislative Framework
Under s.198 of the Migrations Act 1958 (Cth) (“the Act”), an unlawful non-citizen must be removed from Australia as soon as practicable. However, any removal process must be considered in light of Australia’s non-refoulement obligations under international human rights instruments.
Section 5 of the Act relevantly defines “non-refoulement obligation” as follows:
“Section 5 – Interpretation
‘non-refoulement obligations’ includes, but is not limited to:
(a) non-refoulement obligations that may arise because Australia is a party to:
(i) the Refugees Convention; or
(ii) the Covenant; or
(iii) the Convention Against Torture; and
(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
In essence, these international human rights instruments impose an obligation on Australia to not to forcibly return, deport or expel a person a receiving country, if there are substantial grounds for believing that as a necessary and reasonable consequence of that person being removed from Australia to the receiving country, there is a real risk that the person would suffer significant harm.
The applicant’s claims
The applicant provided a Statutory Declaration dated 12 January 2015 in support of the Second ITOA, in which he stated:
a)His family has ties with the LTTE because his father is a supporter of the LTTE, his uncle is a member of the LTTE and his aunts worked as nurses for the LTTE.
b)When he was about 11 years old, his father and his aunts escaped to India.
c)After their escape, his father’s cousin was tortured and burnt alive for not disclosing their whereabouts.
d)He and his mother were interrogated by the Sri Lankan army.
e)He and his mother subsequently escaped to India to reunite with his father.
f)He left India in March 2010 and his wife was forcibly returned to Sri Lanka.
g)His wife was tortured by Sri Lankan intelligence authorities and she tried to commit suicide several times.
h)He fears that he would be killed if he returns to Sri Lanka.
The Second ITOA
On 6 March 2015, the applicant attended an interview before the Assessor. At that interview, the applicant had the assistance of a support person.
The applicant gave to the Assessor further material, including country information and written submissions, both before and after the interview.
At the interview, the applicant reiterated his claims that he was in an Indian refugee camp since 1986 and that his family members had assisted the LTTE. The applicant claimed that he would be imputed with an adverse political opinion of being pro-LTTE, and as a result, he would be at risk of harm in Sri Lanka.
The Assessor summarised in some detail the Refugee Status Assessment and the decision of the Independent Merits Reviewer. The Assessor also summarised the claims in the applicant’s Statutory Declaration dated 12 January 2015.
The Assessor then considered Australia’s non-refoulement obligations and went on to consider in some detail the applicant’s claims. The various exchanges that the Assessor had with the applicant about his claims are summarised in the Assessor’s decision. The Assessor also noted matters of concern about the applicant’s evidence that were put to the applicant, as well as the applicant’s responses.
The Assessor also noted a submission by the applicant’s support person that, due to the Sri Lankan Immigrants and Emigrants Act, persons who leave Sri Lanka illegally are detained and questioned at the airport, and then held in remand until they are brought before a magistrate. The support person referred to Justice North’s decision in WZAPN v Minister for Immigration and Border Protraction [2014] FCA 947 (“WZAPN”) in support of the submission that under s.91R of the Act, a threat to a person’s liberty constitutes significant harm, with no qualitative assessment as to the severity of that threat to liberty.
The Assessor accepted that the applicant and his family had moved to India in 1986 and that the applicant had stayed there until 2010. The Assessor accepted that the applicant had left India voluntarily to come to Australia, and that his wife had returned from India to Sri Lanka and was currently in Sri Lanka with their child.
However, ultimately, the Assessor concluded that the applicant was not a credible witness. The Assessor found that the applicant made implausible and inconsistent statements, and that he had tended to fabricate his claims. The Assessor then dealt, in some detail, with the reasons that gave rise to those adverse credibility findings. In particular, in relation to the applicant’s claim that he and his family had associations with the LTTE, the Assessor found that there were inconsistencies between the applicant’s statements to the Independent Merits Reviewer and his statements during the interview with the Assessor. Accordingly, the Assessor rejected that claim and found that the applicant did not have a political profile such that he would be of any interest to the Sri Lankan authorities upon return to Sri Lanka.
The Assessor accepted that it was possible that on return to Sri Lanka, the applicant may be identified as a ‘failed asylum seeker’. In particular, the Assessor put to the applicant that on return to Sri Lanka, ‘failed asylum seekers’ may be questioned at the airport. The Assessor noted that if a person left Sri Lanka illegally by boat, but was otherwise not involved in criminal activities, only fines were imposed. The Assessor noted that nobody has been imprisoned just because that person left Sri Lanka illegally, as long as that person was not involved in any other serious criminal activity. In putting that information to the applicant, the Assessor identified with particularity the country information the Assessor relied upon and noted the applicant’s responses.
The Assessor accepted that the applicant was likely to be subjected to questioning to confirm his identity, and that he may be remanded at the airport in line with standard practise for nationals who have departed illegally. However, in light of the Assessor’s finding that the applicant would not be of any interest to the authorities in Sri Lanka as he did not have a political profile, the Assessor found that the he would not be subject to arbitrary detention or serious harm for reasons of his political opinion, either imputed or otherwise.
Accordingly, the Assessor found that the applicant did not face a real risk of suffering significant harm should he return to Sri Lanka on account of being a Tamil or for having illegally departed Sri Lanka. Therefore, the Assessor found that Australia does not have non-refoulement obligation to the applicant.
The proceeding before this Court
On 27 May 2015, the applicant attended a directions hearing before me. I explained to the applicant that the role of this Court was very different to that of the Assessor, and that it was not for this Court to reconsider his claims and make different factual findings, or reach different conclusions. I explained to the applicant that the only issue before this Court is whether or not the decision of the Assessor was made according to law. I explained that disagreement with findings and conclusions of the Assessor rarely, by themselves, establish a mistake on the part of the Assessor going to the jurisdiction of the Assessor.
At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support. The matter was originally set down for a show cause hearing on 18 June 2015, but was subsequently adjourned to 2 July 2015.
On 2 July 2015, the applicant appeared in person before the Court. The solicitor for the respondent submitted that the Federal Court of Australia was considering an issue which could affect the outcome of the present proceeding. Accordingly, I was of the opinion that it would be more appropriate for the matter to be dealt with at a final hearing. The applicant was again given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support. The matter was set down for final hearing today.
Application for adjournment
The applicant was unrepresented before this Court today, although had the assistance of a Tamil interpreter.
At the commencement of today’s hearing, the applicant confirmed that he had not filed any Amended Application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.
The applicant sought an adjournment of today’s hearing to have more time to instruct a lawyer to represent him. That application was opposed by the respondent.
As noted above, the applicant commenced this proceeding on 4 May 2015 and at the directions hearing before me on 27 May 2015, he was provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
The applicant said that he has taken some steps to find a lawyer, however he said that the lawyers were busy. The applicant said that he was then ill for some five to six months with a tumour in his throat. However, there is no evidence before this Court to support that claim. Even if I was to accept that the applicant indeed suffered from an illness for some five to six months, it has been more than twelve months since the applicant commenced his application.
The applicant acknowledged that he presently has not instructed any lawyer to represent him and does not have the name of any particular lawyer.
In the circumstances, the applicant has had ample time to seek legal advice and has had assistance to do so.
There is a public interest in in the finality of administrative decisions (see Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 177 ALR 491 per McHugh J at [15] - [17]).
Accordingly, in the absence of any identified lawyer with whom the applicant may have an appointment, and having regard to the 12 month period the applicant has had to instruct a lawyer, the applicant’s application for an adjournment was refused.
Application for judicial review
The applicant was unsure about what grounds he wished to rely upon in support of his application for judicial review. I asked the applicant if it would be of assistance to him if the solicitor for the respondent made submissions first explaining to the applicant why the respondent opposed the relief sought by the applicant. The applicant agreed to that proposal.
Following the respondent’s submissions, each of the grounds of the applicant’s initiating application, filed on 4 May 2015, was interpreted for the applicant and he was invited to say whatever he wished in support of each of those grounds.
The applicant’s grounds are as follows:
“1. That the delegate failed to acknowledge and thus committed a legal error and procedural fairness, the probability of detainment of the applicant on his return to Sri Lanka as a result of the Immigrant and Emigrants Act at the airport.
2. By undergoing a qualitative assessment of the nature and degree of harm experienced by the applicant when being remanded into custody by the authorities at the airport, the delegate failed to apply the reasoning of His Honour North J in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 at [30] and [45].”
Ground 1
To the extent that Ground 1 appears to assert that procedural fairness was denied to the applicant, I asked the applicant why he believed that was so.
The applicant responded that the Assessor had not asked him about “complicated facts” or what had happened to him, and that the Assessor had concentrated on “the prior processes” that had been undertaken in respect of the applicant. The applicant then reiterated his claims that he departed Sri Lanka when he was about 10 years of age, and that he would be detained if he returned to Sri Lanka because of his family’s association with the LTTE.
A fair reading of the Assessor’s decision makes clear that the Assessor spent some significant time detailing the applicant’s history in respect of previous interviews, assessments and review processes, as it was entirely proper so to do.
As stated above, the Assessor then provided a detailed summary of the exchanges the Assessor had with the applicant; the Assessor’s concerns that the Assessor explored with the applicant; and, the applicant’s responses. The Assessor’s ultimate findings and conclusions, referred to above, would appear to be open to the Assessor on the evidence and material before the Assessor, and for the reasons given, including adverse credibility findings.
Credibility findings are a matter par excellence for the Assessor (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Assessor] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
There would not appear to be any denial of procedural fairness apparent on the face of the Assessor’s decision, and certainly none has been identified by the applicant, other than a bare unparticularised assertion that the Assessor did not ask him about what happened to him. Such an assertion is not borne out by the decision record as is apparent from the summary of the Assessor’s decision above.
Accordingly, Ground 1 does not raise an arguable case for the relief claimed.
Ground 2
Ground 2 of the applicant’s application is a complaint based on WZAPN which essentially stated that it was not open to the decision maker to undertake a qualitative assessment of the harm that an applicant may experience if remanded at the airport. This principle was overturned by the Full Court of the Federal Court in SZTEQv Minister for Immigration and Border Protection [2015] FCAFC 39 (“SZTEQ”), prior to the Assessor’s decision.
The High Court has now handed down judgment in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22, which overturned the decision of Justice North in WZAPN and confirmed that the correct approach was that adopted by the Full Court of the Federal Court of Australia in SZTEQ.
As stated above, the Assessor put to the applicant that a person who left Sri Lanka illegally by boat, but who was otherwise not involved in criminal activity, would receive only a fine. The Assessor noted the applicant’s responses and the submission of his support person.
As stated above, the Assessor ultimately found that upon return to Sri Lanka, the applicant may be identified as a failed asylum seeker and detained and questioned at the airport, and then held in remand, in line with standard practice for nationals who have departed illegally. However, as stated above, the Assessor found that the applicant would not be of any interest to the authorities as he had no political profile and would therefore not be subject to arbitrary detention or be at risk of suffering significant harm. Again, those findings were open to the Assessor on the evidence and material before the Assessor, and for the reasons given.
Accordingly, Ground 2 does not raise an arguable case for the relief claimed.
Conclusion
A fair reading of the Assessor’s decision record makes clear that the Assessor understood the claims being made by the applicant; explored those claims with the applicant at an interview; and, had regard to all material provided in support. The Assessor put to the applicant matters of concern the Assessor had about his evidence and noted the applicant’s responses. The assessor identified independent country information to which the Assessor had regard, and discussed that information with the applicant and his support person insofar as it related to the applicant’s return to Sri Lanka.
The Assessor then made findings based on the evidence and material before the Assessor. Those findings of fact were open to the Assessor on the evidence and material before the Assessor and for the reasons given. A fair reading of the Assessor’s decision makes clear that the Assessor reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Assessor complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Assessor’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 1 June 2016
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