SZSDK v Minister for Immigration - [2013] FMCA 240

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZSDK v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 240

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka – applicant not believed – no arguable case of jurisdictional error.

Migration Act 1958 (Cth), s.36

Applicant:

SZSDK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2563 of 2012

Judgment of:

Driver FM

Hearing date:

9 April 2013

Delivered at:

Sydney

Delivered on:

9 April 2013

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents:

Ms N Johnson
Sparke Helmore

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
The Court notes the undertaking of the applicant to file and serve on the respondents a Notice of Address for Service within seven days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2563 of 2012

SZSDK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 2 October 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is a Sri Lankan citizen of Sinhalese ethnicity. He arrived in Australia in February 2012. He applied for a protection visa on 19 May 2012. That application was refused by the Minister’s delegate on 11 July 2012. The applicant, who was then in immigration detention, was notified of that decision on the same day and applied for review by the Tribunal. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to appear at a hearing. The applicant attended that hearing on 10 September 2012. He was assisted by a Sinhalese interpreter and Ms Beatriz Stotz of Vrachnas Lawyers.
The applicant claimed for protection for various reasons. Central to his claims was a story concerning one of his sons who had engaged in an unapproved relationship with the daughter of a rich family. The applicant claimed that his son and the girl had eloped and were married in Italy. The applicant claimed that this conduct had caused the enmity of the girl’s family. He feared harm as a result. At the Tribunal hearing, the applicant also referred to his fear of being harmed for his imputed support for General Fonseka. He also feared that the girl’s family had sought to associate him and his family in some way with the LTTE.
At the hearing, the Tribunal expressed concern at how the applicant’s claims had evolved over time. The Tribunal member put to the applicant at the hearing his difficulty in accepting that the applicant was telling the truth. In its reasons, the Tribunal rejected the applicant’s accounts of his asserted past harm in Sri Lanka. At [83] the Tribunal stated[1]:
[1] court book (CB) 153-154
Having regard to the changes in the applicant’s evidence in the course of the hearing before me and his attempts to change what he said in his original application and the declaration accompanying that application and to add in new claims, I do not accept that the applicant is a witness of truth. I consider that he is prepared to change his evidence if he believes that this will be to his advantage. I do not accept that he was nervous or unable to recollect matters when he prepared his original application. While I accept that he would not have been familiar with the relevant procedures, he had the assistance of his representatives in preparing his application. The changes to his claims are not mere matters of detail. Rather they appear to be an attempt to make substantial changes to his claims in the hope of enhancing the prospect that his application will be successful. Unfortunately, as I put to the applicant, these changes make his claims less believable, not more believable.
In consequence, the Tribunal rejected all of the essential elements of the applicant’s factual claims. The Tribunal concluded that the applicant did not qualify for a protection visa under either of the two criteria.
These proceedings began with a show cause application filed on 7 November 2012. The applicant continues to rely upon that application. In that application, the applicant raises no issue in relation to the Tribunal’s finding that the applicant is not a refugee. He complains, however, that the Tribunal failed to apply the complementary protection provisions in accordance with s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).
The matter came before me for first court date directions on 19 December 2012. The applicant attended in person with the assistance of a Sinhalese interpreter. He consented to orders including an order listing the matter for a show cause hearing today. At that time, the applicant was held in immigration detention at Villawood. It appears that the applicant was released from immigration detention some time in January this year. He is now living in Melbourne. However, he has not filed any notice of change of address. There was no appearance by the applicant in person today. However, the Court was successful in contacting the applicant on a mobile telephone number provided by the Minister’s solicitor. It appears that the Minister’s Department has a residential address for the applicant at an address in Altona Meadows. The applicant told me that he has left that address and is now living at an address in Laverton with five other people. He undertook to provide a new notice of Address for Service within seven days.
I agreed to hear the applicant by telephone and he agreed to participate in the hearing by telephone. The applicant told me that he has not had the benefit of advice under the Minister's panel advice scheme. He had, however, received the court book which was filed on 10 January 2013. He has apparently also received some legal advice while he was held in immigration detention. While it is unfortunate that the applicant has not had the benefit of further advice under the Minister's scheme I am satisfied that the Court and the Minister's Department have done all that they could to seek to facilitate the provision of that advice.
The applicant was not able to make any meaningful submissions in support of his application. He has no understanding of the complementary protection criterion for the provision of a protection visa.
It is, however, plain to me that there is no substance in the application. The Tribunal assessed the applicant’s claims against the complementary protection criterion at [95] and [96] of its reasons[2]:
[2] CB 156
As referred to above, the information available to me suggests that failed asylum-seekers who are involuntarily returned to Sri Lanka do not appear to be subject to harassment or mistreatment while checks are carried out on them at the airport (DFAT, Country Information Report No. 09/75, dated 14 October 2009, CX234989). Having regard to my findings of fact above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, that there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined, in the context of the treatment of failed asylum-seekers who have left Sri Lanka illegally by boat and who have been involuntarily returned to Sri Lanka from Australia.
Having regard to my findings of fact above, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.
The Tribunal found that the applicant did not qualify for complementary protection because it rejected the factual bases upon which that protection was sought. That conclusion was plainly open to the Tribunal on material before it. The Tribunal clearly understood the criteria it had to apply under the Migration Act. There is nothing to support the contention that the Tribunal misapplied the law. It follows that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
In the circumstances, I will dismiss the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules). I will so order.
In consequence of the dismissal of the application the minister seeks an order for costs. The minister seeks scale costs. The applicant did not wish to be heard on that issue. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 12 April 2013