SZSYH v Minister for Immigration

[2016] FCCA 1727

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSYH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1727

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claim – whether the Tribunal denied procedural fairness to the applicant – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2A), 476.

Cases cited:

SZTAP v Minister of Immigration and Border Protection [2015] FCAFC 175

Applicant: SZSYH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1368 of 2013

Judgment of: Judge Street

Hearing date: 11 July 2016

Date of Last Submission: 11 July 2016

Delivered at: Sydney

Delivered on: 11 July 2016

REPRESENTATION

The applicant appeared in person

Counsel for the First Respondent: Mr M Smith

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The amended application is dismissed

2. The applicant pay the costs of the first respondent fixed in the amount of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1368 of 2013

SZSYH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 17 May 2013 affirming the decision of the delegate not to grant the application a Protection (Class XA) visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. The applicant claimed to fear persecutory harm in Sri Lanka because of his actual or imputed political opinion in support of the LTTE or against the government, his Tamil ethnicity and his membership of a particular social group consisting of failed asylum seekers.

2. On 8 October 2012, the delegate found that it was not satisfied the applicant had a real chance of being persecuted for a Refugee Convention reason, and found that the applicant did not have a well-founded fear of persecution. The delegate also found that he was not satisfied that Australia had protection obligations because there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there was a real risk that the applicant would suffer significant harm. The delegate found the criteria under s.36(2) of the Migration Act 1958 were not satisfied.

3. The applicant applied for a review on 11 October 2012.  By letter dated 12 November 2012, the applicant was invited to attend a hearing on 20 December 2012.  The applicant appeared on that date to give evidence and present arguments and was assisted by an interpreter as well as his registered migration agent.  Prior to the hearing, the Tribunal had been provided with submissions on behalf of the applicant dated 16 September 2012 and 18 December 2012 as well as a further statement being provided on 15 December 2012, all of which were referred to in the Tribunal’s reasons.

4. The Tribunal identified the relevant law and summarised the applicant’s claims and evidence and found that it was not satisfied there was a real risk the applicant would suffer persecutory harm in respect to the applicant’s fears referred to above.  The Tribunal made findings in relation to the applicant’s claims that were open on the material before the Tribunal.  In particular, the Tribunal addressed the issue of the applicant having left Sri Lanka illegally and the consequences that may occur on his return. 

5. The Tribunal found that it was not satisfied there was a real chance the applicant would suffer serious harm at the time of his return or any subsequent points because of his membership of a particular social group consisting of failed asylum seekers, whether or not this entity included those who left the country unlawfully.  The Tribunal was not satisfied that the applicant would be denied a right to livelihood and denied access to basic services.  The Tribunal was not satisfied there was a real chance that on the return of the applicant to Sri Lanka, he would suffer serious harm amounting to persecution for the Convention reasons of his Tamil ethnicity, his real or imputed political opinion or his membership of a particular social group.

6. The Tribunal found that it was not satisfied the applicant had a well-founded fear of persecution for a Convention reason should he be returned to Sri Lanka now or in the reasonably foreseeable future. The Tribunal was not satisfied the applicant was a refugee. The Tribunal considered the applicant’s claims and evidence in relation to complementary protection. The Tribunal found that it was not satisfied there are substantial grounds to believe that as a necessary and foreseeable consequence in the applicant being removed from Australia to Sri Lanka there is a real risk he would suffer significant harm within the terms of s.36(2)(aa) of the Migration Act 1958. The Tribunal found that the applicant failed to meet the criteria under s.36(2) of the Migration Act 1958, and affirmed the decision of the delegate. 

7. Orders were made by the Court on 11 July 2013 providing the applicant with an opportunity to file an amended application, affidavit, evidence and submissions. The applicant filed an amended application on 13 September 2013, which identified the following ground:

   The RRT has not considered an integer or aspect of my claim that I could be held for some months at an airport and degrading conditions in prison for months to me.

8. The matter was originally the subject of a hearing that commenced on 10 December 2015 which was adjourned pending a decision of the Full Court of the Federal Court of Australia in SZTAP v Minister of Immigration and Border Protection [2015] FCAFC 175.

9. On 10 December 2015, orders were made providing an opportunity for the applicant to file further submissions, and the matter was otherwise stood over for hearing on 13 May 2016. On 13 May, the matter was stood over for hearing to today. At the commencement of the hearing, the Court indicated that it proposed to hear the matter afresh, and asked whether there was any objection in relation to this Court hearing the matter afresh. No objection was made to this Court hearing the matter afresh. 

10. The Court explained to the applicant that the nature of the hearing was a final hearing to determine whether or not the Tribunal’s decision was affected by a relevant legal error.  The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was determining whether the Tribunal’s decision was lawful, and whether the Tribunal’s decision was fair. The applicant confirmed that he understood what had been said by the Court.

11. The Court explained to the applicant that if satisfied that the decision was affected by a relevant legal error it would set aside the decision of the Tribunal and send it back for further hearing.  The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, the applicant’s application would be dismissed.  The Court explained to the applicant it would have identified the evidence, and then hear submissions from the applicant, and then provided the applicant put submissions, hear submissions from counsel for the first respondent and then hear submissions from the applicant in reply.

12. From the bar table, the applicant maintained that the fears he had earlier expressed remain, and that he had no family other than his mother in Sri Lanka and maintained that he would face problems if returned to Sri Lanka. This invites an impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error.  In relation to the ground identified in the amended application, it is apparent that the Tribunal made findings in relation to the questioning that the applicant may face on his return to Sri Lanka, and that he would be brought before a Court and be able to apply for bail.

13. The Tribunal identified that bail was routinely granted on the accused’s own reconnaissance, although a family member is also required to provide surety. The Tribunal identified the possibility that the applicant may be placed in a section of the Negombo Prison possibly for some days until the bail hearing was available. It is apparent that the Tribunal took into account those circumstances both in relation to the applicant’s claim concerning s.36(2A) as well as complementary protection in s.36(2)(aa), and made adverse findings in relation to the applicant’s claims.

14. The Tribunal did not accept that the applicant would be held in prison for some months, and found that he would be placed in remand for a relatively short period and found that the relevant treatment was not one in which the Tribunal was satisfied that it could be reasonably said to amount either to serious harm for a Convention reason or significant harm in terms of the provisions of Australia’s complementary protection arrangements. Accordingly, there is no substance in the proposition that the Tribunal had failed to consider an integer of the applicant’s claim in respect of the potential detention of the applicant in respect of his unlawful departure and his return to Sri Lanka.

15. The amended application fails to identify any jurisdictional error.  I am satisfied on the evidence before this Court that the Tribunal complied with its statutory obligations, and that the applicant had a genuine hearing.  I am not satisfied on the material before me that the applicant was the subject of any denial of procedural fairness by the Tribunal.  The amended application fails to disclose any jurisdictional error by the Tribunal.  The amended application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 July 2016