SZSXY v Minister for Immigration
[2014] FCCA 5
•10 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSXY v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 5 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka including as a returnee – whether the Tribunal erred in considering whether the applicant would suffer harm if detained on return considered. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5AA, 36, 91R Migration Amendment (Unauthorised Maritime Arrivals) Regulations 2013 (Cth) |
| Abebe v Commonwealth (1999) 197 CLR 510 Prahastono v Minister for Immigration (1997) 77 FCR 260 |
| Applicant: | SZSXY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1297 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 December 2013 |
| Date of Last Submission: | 20 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms R Jones Australian Government Solicitor |
ORDERS
The application as amended on 23 September 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1297 of 2013
| SZSXY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 8 May 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Sri Lanka and claimed protection on the basis of his Tamil ethnicity, his actual or imputed political opinion of being a perceived sympathiser or supporter of the Liberation Tigers of Tamil Eelam (LTTE) and his membership of the particular social group of “failed asylum seekers”.
The following statement of background facts relating to the applicant’s protection claims and the Tribunal’s decision on them is derived from the Minister’s initial written submissions filed on 9 December 2013.
The applicant, a 28 year old male citizen of Sri Lanka, arrived in Australia on 29 May 2012. The applicant applied for a protection visa on 27 August 2012[1]. A delegate of the Minister refused the application on 25 October 2012[2]. On 31 October 2012, the applicant lodged an application for review with the Tribunal[3].
[1] Relevant Documents (RD) 1-73
[2] RD 75-90
[3] RD 91-97
The applicant claimed to fear harm in Sri Lanka on the basis of his Tamil ethnicity, his actual or imputed political opinion as a supporter of the LTTE or opponent of the current Sri Lankan government, his status as a returned asylum seeker and as a person who left Sri Lanka illegally. The applicant claimed that he was beaten by the Sri Lankan Army in about 2007 when he was travelling to Trincomalee with his uncle. He also claimed that the army were searching for him in relation to an incident involving his brother in May 2011. The applicant claimed that the army had confronted his brother on his return from a fishing trip and ordered him to hand over his entire catch. The applicant’s brother refused and was beaten before he managed to escape. The applicant claimed that he has not seen his brother since that incident and that he fears that the army will persecute him in retaliation for his brother’s actions. Although the army did not approach the applicant’s house after the incident, they asked for his brother at a local bike shop and waited for him at the temple.
After the incident in 2011, the applicant left his home in Udappu and lived in Vavuniya with his cousin. He claimed that he was still afraid of being discovered by the army and so he decided to go to India. The applicant returned to Sri Lanka after five weeks in India and lived in Chilaw before he departed for Australia.
On 16 January 2013, the applicant attended a hearing before the Tribunal.
Tribunal decision
On 8 May 2013, the Tribunal affirmed the delegate's decision. It noted that it had a number of concerns regarding the credibility and plausibility of the applicant’s claims. While the Tribunal was prepared to accept that the applicant’s brother may have been involved in a confrontation with the Sri Lankan army in 2011, it did not accept that members of the army had searched for the applicant and his brother or that the applicant had fled out of fear of harm[4]. The Tribunal discussed a number of reasons for this finding, for example, it did not accept the plausibility of the applicant’s evidence that the army did not approach the applicant’s home in their pursuit of the applicant and his brother or that the applicant would have returned to Sri Lanka if he feared for his safety.
[4] RD 161 [25] and RD 162 [29]
The Tribunal did not accept that the applicant has ever been imputed with a political opinion in favour of the LTTE or against the government[5].
[5] RD 163 [33]
The Tribunal considered independent country information regarding the threat faced by Tamils in Sri Lanka and found that the applicant did not have a profile which would put him at risk of harm[6]. It was also not satisfied that the applicant would suffer serious harm on his return to Sri Lanka because he had unsuccessfully sought protection in Australia or because he had left Sri Lanka illegally[7].
[6] RD 164 [37]
[7] RD 166 [47] and RD 167 [52]
The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason should he return to Sri Lanka now or in the reasonably foreseeable future[8].
[8] RD 168 [54]
The Tribunal then considered the complementary protection provisions of the Migration Act 1958 (Cth) (Migration Act). It accepted that the applicant may be questioned at the airport and briefly detained on charges of leaving Sri Lanka illegally but found that this would not amount to significant harm. The Tribunal concluded that there was no real risk that the applicant would be exposed to significant harm because he had left Sri Lanka illegally or for any other reason[9].
[9] RD 168 [56]
The judicial review application
These proceedings began with a show cause application filed on 11 June 2013. The applicant now relies upon an amended application filed on 23 September 2013. There are three grounds in that amended application:
1. The RRT has not considered one of my integer or aspect of my Convention Claims for a Protection Visa and Complementary Protection.
2. The RRT has not considered my claim in regard to my detention on my arrival in degrading conditions for time periods of up to months in Negombo prison.
3. The RRT has failed to deal with my claim that I could be held for some months in Negombo prison.
By an Application in a Case filed in court at the trial of this matter on 18 December 2013, the applicant sought an adjournment on the basis that he was hopeful of obtaining legal representation and that he wanted to obtain the audio recording of the Tribunal hearing so that a legal advisor could consider the then current or possible future grounds of review. I dismissed that adjournment application on the basis that the applicant had already been given time to amend his application and had done so with the assistance of counsel, who gave advice under the panel advice scheme which existed at the time. However, I agreed to interpret the grounds of review liberally. In particular, I agreed to treat the assertion of a failure to consider aspects of the applicant’s claims as including an assertion that any consideration of those claims was not lawful. I noted that Grounds 2 and 3, somewhat differently framed, had arisen in other then recent proceedings and that I would need to consider the issue of whether the Tribunal lawfully considered the complementary protection criterion, with particular reference to the question of whether the applicant, if detained at Negombo Prison on return to Sri Lanka, would be subjected to degrading treatment.
I invited post hearing submissions from the parties, both in relation to the grounds of review as addressed in oral argument and also in relation to any issue of futility, bearing in mind that the applicant is an unauthorised maritime arrival (UMA) as that term is defined in s.5AA of the Migration Act, and the applicant was affected by the Migration Amendment (Unauthorised Maritime Arrivals) Regulations 2013 (Cth) (UMA Regulations) made on 14 December 2013 which appeared to deprive the applicant of any chance of obtaining a protection visa.
The Minister filed further written submissions on 14 May 2014 and the applicant did so on 20 May 2014. I note that the applicant does not appear to have obtained legal representation.
Consideration
There is no issue of futility arising from the UMA Regulations, following the disallowance of those Regulations and the decision of the High Court in Plaintiff S297/2013 v Minister for Immigration[10].
[10] [2014] HCA 24; see also Plaintiff M150/2013 v Minister for Immigration [2014] HCA 25
The applicant contends that the Tribunal failed to consider an integer of his Convention claims for protection and/or complementary protection. He submits that the Tribunal accepted that a Tamil like him would be at risk of persecution due to his ethnicity in the past but nevertheless found is no longer at risk of serious or significant harm. The applicant asserts that there is a continuing risk. This is, in my view, an attack upon the merits of the Tribunal decision.
The applicant also contends that the Tribunal did not consider his claim in relation to the risk of him being detained upon arrival at Colombo airport in degrading conditions for a period of up to months in Negombo Prison. The applicant contends that the Tribunal constructively failed to consider his claim to complementary protection in this regard.
The applicant makes other assertions which only go to the merits of the Tribunal decision.
I accept the Minister’s post hearing submissions in relation to the amended application.
The amended application claims that the Tribunal did not consider an integer or aspect of the applicant’s claims (Ground 1) “in regard to my detention on my arrival in degrading conditions for time periods of up to months in Negombo prison” (Ground 2) and “that I could be held for some months in Negombo prison” (Ground 3). These claims are made in the applicant’s submissions to the Tribunal dated 14 January 2013, under the heading “Complementary Protection Issues”[11].
[11] RD 126-129
Contrary to Ground 1 of the amended application, the Tribunal did consider the applicant’s claims to fear lengthy detention in Negombo prison in degrading conditions at [49]-[52][12] and [56][13]. The Tribunal there accepted that the applicant could be held on remand for “a relatively brief period”[14] awaiting a bail hearing, and that the conditions on remand were “overcrowded and unsanitary”[15]. However the Tribunal found that while “unpleasant” for the applicant[16], such conditions could not reasonably be seen to reach the level of “serious harm amounting to persecution”[17], or “significant harm”[18].
[12] RD 167
[13] RD 168
[14] RD 168 [56]
[15] RD 167 [51]
[16] RD 167 [52]
[17] RD 167 [52]
[18] RD 168 [56]
These findings are sufficiently general to address and reject the claim recorded at RD 126-129[19]. On a fair reading, as required by Minister for Immigration v Wu Shan Liang[20], the Tribunal at [49]-[52][21] and [56][22] found that the treatment that it accepted there was a real chance of the applicant facing in detention in Negombo prison did not amount to “serious harm” within s.91R(1)(b) and (2) or “significant harm” as defined in ss.5 and 36(2A) of the Migration Act. That finding addresses the claim made and there was no legal obligation on the Tribunal to do more.
[19] see Applicant WAEE v Minister for Immigration (2003) 75 ALD 609 (FCA/FC) at [46]-[47]
[20] (1996) 185 CLR 259 at 271-272
[21] RD 167
[22] RD 168
As a matter of general principle, whether a “relatively brief” period on remand in prison in Sri Lanka constitutes “serious harm” or falls within the forms of harm in the definition of “significant harm” is a judgement of fact and degree for the Tribunal, as was held in relation to whether particular conduct was sufficiently severe to amount to “persecution” or “serious harm” in Prahastono v Minister for Immigration[23]; Minister for Immigration v Kord[24]; Das vMinister for Immigration[25]; VDAU vMinister for Immigration[26]; Minister for Immigration v SZANS[27]. There is no error of law in the Tribunal making a wrong finding of fact[28].
[23] (1997) 77 FCR 260 (Hill J) at 269, 271
[24] (2002) 125 FCR 68 (FC) at [3], [56]
[25] (2004) 208 ALR 229 (FCA/Sundberg J) at [23]-[24]
[26] [2004] FCAFC 32 at [24]
[27] (2005) 141 FCR 586 (FC) at [50]-[53]
[28] Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; Abebe v Commonwealth (1999) 197 CLR 510 at [137]
The case is factually similar to my decision in SZSYP v Minister for Immigration[29], where I held that a similar conclusion by the Tribunal that the potential treatment of an applicant briefly on remand in Negombo prison was not so “bad” as to fall within the definition of significant harm did not reveal jurisdictional error. I have not changed the view that I took in SZSYP and I see no reason to take a different view in this case.
[29] [2014] FCCA 7 at [44]
Conclusion
The applicant has failed to establish any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 10 July 2014
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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Natural Justice
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Procedural Fairness
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Jurisdiction
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