SZTGW v Minister for Immigration
[2014] FCCA 817
•23 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTGW v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 817 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| SZSYP v Minister for Immigration & Anor [2014] FCCA 7 |
| Applicant: | SZTGW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2177 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Carr DLA Piper |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit 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 $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2177 of 2013
| SZTGW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
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 21 August 2013. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is a young Tamil man from Sri Lanka. He sought protection because of his links to the Liberation Tigers of Tamil Eelam (LTTE). The applicant initially claimed that he was forced to undertake work for the LTTE. Later, he expanded upon those claims to assert deeper involvement with the LTTE.
Following the rejection of his application by the delegate, the applicant sought review before the Tribunal. The Tribunal invited the applicant to a hearing, which the applicant attended. He was assisted by legal advisors. The Tribunal accepted that the applicant had lived under the administration of the LTTE in Sri Lanka. The Tribunal accepted that, like thousands of other Tamils displaced in the final stages of the Sri Lankan civil war, the applicant and other members of his family surrendered to the Sri Lankan Army in April 2009. They were taken to a camp for internally displaced persons in Vavuniya. The Tribunal also accepted that the applicant was subject to greater scrutiny as a young Tamil male from the north who bore a scar.
However, the Tribunal did not accept the applicant’s further claims of being subject to torture at an unknown jungle camp. Neither did the Tribunal accept the applicant’s augmented claims of deep involvement with the LTTE. The Tribunal found at [46] of its reasons[1] that the applicant had embellished his evidence about his LTTE involvement. The Tribunal did not accept that the applicant was at risk of serious harm by reason of his ethnicity or religion or because of his past association with the LTTE.
[1] court book, page 297
The Tribunal also considered claims made by the applicant of a fear of harm as a failed asylum seeker. The Tribunal had regard to country information that the applicant, like others who left Sri Lanka unlawfully, would face scrutiny on return. The Tribunal did not accept that the applicant faced a real risk of harm for that reason. At [68] of its reasons[2], the Tribunal accepted that the applicant will, as a returnee to Sri Lanka, go through a process of screening and questioning which will bring him into contact with the Sri Lankan authorities. The Tribunal did not accept, however, that he faced a real risk of harm, because he was not a person of particular interest to the Sri Lankan authorities. The Tribunal also considered and rejected the applicant’s claims to complementary protection.
[2] court book, page 302
These proceedings began with a show cause application filed on 16 September 2013. That application was defective in that it made no assertion of jurisdictional error by the Tribunal. The applicant filed an amended application on 21 November 2013. The applicant told me today from the bar table that that application was prepared by someone on his behalf and he did not understand it. After I explained its contents to him, he agreed that that was the application he relied upon. The amended application contains one particularised ground:
1. The Tribunal failed to address an issue raised squarely on the material before it.
Particulars
The Tribunal made no reference or determination in relation to the material referred to by the delegate at CB 178 which indicated that as a person who had departed Sri Lanka unlawfully the applicant would be prosecuted on his return there and may be held on remand in prison in Negombo until the next sittings of the court there. Consequently the Tribunal made no findings as to the chance of the applicant being persecuted or suffering significant harm as a consequence of such detention.
I have before me as evidence the court book filed on 8 October 2013.
I also received in part as a submission and in part as a statement of facts the applicant’s affidavit filed on 16 September 2013.
The amended application asserts that the Tribunal erred by failing to deal with an issue dealt with by the Minister’s delegate. The delegate considered an issue not raised specifically before her by the applicant or his legal advisors, although the advisors submitted country information about failed asylum seekers. That was an issue of how he would be dealt with on return as a person who had left Sri Lanka unlawfully.
The delegate in her decision referred to country information about the manner in which returnees in the applicant’s circumstances are dealt with[3]. That information included that, as the applicant had left Sri Lanka unlawfully by boat, on return he might be held on remand at the Negombo prison until the next sitting of court there, after which he would be released on bail pending further action. It is true that that issue was not specifically considered by the Tribunal.
[3] court book, pages 177 and 178
The Tribunal dealt in detail with the applicant’s claims as a failed asylum seeker. The Tribunal addressed, as it was required to do, the issues raised by the applicant at the hearing conducted by the Tribunal and the issues raised in a very extensive written submission made on the applicant’s behalf by his legal advisors. I am satisfied that before the Tribunal neither the applicant nor his legal advisors raised the issue of the temporary detention of the applicant at Negombo prison. That was an issue raised in earlier proceedings before me in several cases. I dealt with it in SZSYP v Minister for Immigration & Anor[4]. In that case, the issue had been specifically raised before the Tribunal and the Tribunal dealt with it. I found that the Tribunal did not err in finding that the applicant was not at risk of significant or, for that matter, serious harm by reason of a likely short period of detention in Negombo prison. Having regard to that decision and the fact that the claim was not raised before the Tribunal in this case, I am not persuaded that the applicant has identified an arguable case of jurisdictional error in his amended application.
[4] [2014] FCCA 7
I have considered whether any other issue might be raised given that the applicant is not currently legally represented. I can see no arguable case of legal error by the Tribunal.
Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs. The Minister sought an order for costs fixed in the sum of $4,800. That application was based essentially on the additional work that had been required because this case was affected by the recent challenge in the High Court to the Unauthorised Maritime Arrival Regulations 2013 (Cth). I decline to award costs in that amount because the circumstances were beyond the control of this applicant. The applicant did not wish to be heard on the question of costs.
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 $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 24 April 2014