SZRFP v Minister for Immigration

[2015] FCCA 1567

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRFP v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1567

Catchwords:
MIGRATION – Independent Treaties Obligation Assessment – Protection (class XA) visa – whether the Assessor failed applied the correct test – no jurisdictional error – application dismissed.

Legislation:  

Federal Circuit Court Act 1999 s.15
Migration Act 1958 ss.197C, 198, 474, 476

Applicant: SZRFP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: GILLIAN SULLIVAN, IMA PROTECTION NSW DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

File Number: SYG 882 of 2015

Judgment of: Judge Street

Hearing date: 5 June 2015

Date of Last Submission: 5 June 2015

Delivered at: Sydney

Delivered on: 5 June 2015

REPRESENTATION

Solicitors for the Applicant: Mr F. Nikjoo
Michaela Byers, Solicitor

Counsel for the Respondent: Ms Graycar

Solicitors for the Respondent: Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 882 of 2015

SZRFP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

GILLIAN SULLIVAN, IMA PROTECTION NSW DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for declaratory and injunctive relief purportedly within the Court’s jurisdiction under s.476 of the Migration Act 1958 taken together with s.15 of the Federal Circuit Court Act 1999 in respect of an alleged legal error by an assessor in a report dated 12 March 2015 in respect of Australia’s non-refoulement obligations concerning the applicant. The first respondent accepts, given the expended meaning of migration decision, in s.474 that there is a real risk of removal of the applicant sufficient to give rise to this Court having jurisdiction.

2. Section 197C provides as follows:

   Australia's non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198

   (1)  For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

   (2)  An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen. 

3. On the face of the terms of s.197C even if there was a legal error in the assessment it could not give rise to the grant of injunctive relief in respect of s.198 so far as concerns the non-refoulement obligation and on that ground the application should be dismissed. However, I have also given attention to the grounds, which are as follows:

   1. The Assessor erred in applying the wrong test when assessing the criteria provided by UNHCR December 2012 Eligibility Guidelines for Sri Lanka and a DFAT Report, 3 Oct 2014, CIS2F827D91260.

   Particulars

   a. Central to the applicant's claims for protection was that:

   i. From 2000 his brother was an L TIE combatant;

   ii. The applicant unde1took basic LTTE training. provided carpentry services and gave monetary donations to the LTTE; and

   iii. The applicant had been questioned and interrogated about his brother’s whereabouts on a number of occasions.

   b. The Assessor accepted that the applicant's brother was forced to joined the LTTE in 2000 to undertake border control. His brother was placed in the IDC camp, ran away in 2009 and has not been seen since.

   c. UNHCR guidelines 2, 4 and 6 are applicable to the applicant:

   i. 2) Fonner LITE combatants or ''cadres",'

   ii. 4) Former LITE supporters who may never have undergone military training. but were involved in sheltering or transporting LITE personnel, or the supply and transport of goods for the LITE; and

   iii. 6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

   d. The Assessor also considered DFAT report CIS2F827D91260 that stated that 11those at highest risk of monitoring, arrest, detention or prosecution include the LTTE’s form leadership, regardless of whether they performed a combat or civilian role during the conflict".

   e. The Assessor then created her own criteria/test that ''the claimant was not a leader or a high profile member of the LITE or closely related to family with a high risk profile" that is not suppo1ted by the UNHCR Eligibility guidelines and/or the DFAT report

4. The applicant seeks to challenge the findings made by the assessor as involving an error relevant in respect of the following passage:

   The claimant has stated that he fears being harmed in Sri Lanka because he will be suspected of having links with the LTTE. The claimant's past involvement with the LTTE was being made to provide carpent1y services and donations. His brother's association with the LTTE was a guard on the LTTE border.

   According to The United Nations High Commissioner for Refugees  (UNHCR 's) December 2012 Eligibility Guidelines for Sri Lanka, a person's real or perceived links with the LTTE may give rise to a need for international refugee protection. Although the nature of these links can vary, this may include:

   1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the L TTE was in control of large parts of what are now the n01thern and eastern provinces of Sri Lanka;

   2) Former LTTE combatants or "cadres";

   3) F01mer LTTE combatants or "cadres" who, due to injury or other reason, were employed by the L TTE in functions within the administration, intelligence, "computer branch" or media (newspaper and radio);

   4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting L TTE personnel, or the supply and transport of goods for the LTTE;

   5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

   6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

   DFAT recently reported that those at highest risk of monitoring, arrest, detention or prosecution include the LTTE's former leadership, regardless of whether they performed a combat or civilian role during the conflict.

   Based on the above reports, I consider that the claimant was not a leader or a high profile member of the LTTE or closely related to family with a high risk profile ... I am satisfied that the claimant does not face a real chance of persecution for reason of any association with the LTTE.

5. The finding that the applicant does not face a real chance of persecution for any convention reason or any association with the LTTE was a finding of fact made by the Assessor taking into account the country information.  The applicant seeks to criticise the reasoning process of the assessor in respect of the proposition (CB 374):

   Based on enough reports, I consider that the claimant was not a leader or a high profile member of the LTTE or closely related to family with a high risk profile.

6. The assessor’s report must be heard as a whole and it’s clear that the assessor identified the country information to which the applicant refers and it was open to the assessor as part of the chain of reasoning in respect of whether the applicant faced a real chance of persecution for reason of any association with the LTTE to make findings as to the applicant’s role, whether a leader, whether a high profile member and whether closely related to a family with a high risk profile  Those were findings of fact which it was open of the Assessor to take into account and do not give rise to any legal error by the assessor.

7. I reject to proposition that the assessor created a new and different test by reason of the findings referred to and I accept the respondent’s submission that this was a matter of fact finding by the Assessor that gives rise to no legal error and that there was no failure to take into account the country information by the assessor and that there is no substance in the suggestion that the assessor misconstrued the country information.  For those further reasons this is not a case in which there is any legal error made out of a kind that could give rise to either the declaratory or the injunctive relief sought in the application and the application is dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 June 2015