SZTWY v Minister for Immigration
[2015] FCCA 1220
•7 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTWY v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1220 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Migration Act 1958, ss.424AA, 476 |
| MZZMK v Minister for Immigration and Border Protection [2015] FCA 208 |
| Applicant: | SZTWY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 377 of 2014 |
| Judgment of: | Judge Street |
| Hearing date: | 7 May 2015 |
| Date of Last Submission: | 7 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2015 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the First Respondent: | Mr Speirs Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6825.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 377 of 2014
| SZTWY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 22 January 2014 affirming a decision of a delegate not the grant the applicant a Protection (Class XA) visa. The application identifies the following grounds:
1. It is submitted that the tribunal did not properly take into account the subjective case of the applicant in determining that he should not be granted a Protection (Class XA) visa.
2. It is also submitted that had the tribunal allowed appropriate weight to the applicant's case, it would not have reached the conclusion in refusing the applicant a protection visa.
3. It may also be submitted that the tribunal had misapplied the test under s.65 Migration Act 1958.
The matter was listed for today for hearing. There had been a solicitor on the record. Relevantly, the respondent had filed a response indicating that the application was one in respect of which there was no jurisdictional error. It is clear that there is no substance in relation to the first ground of the application, as the Tribunal clearly took into account the claims and evidence of the applicant, and it was open to the Tribunal to make adverse findings in relation to those claims. Ground 1 fails to disclose a jurisdictional error.
Ground 2 complains about weight, which is clearly a matter for the determination of the Tribunal (see MZZMK v Minister for Immigration and Border Protection [2015] FCA 208 at [48]). Accordingly, ground 2 fails to disclose any arguable jurisdictional error.
Ground 3 is a generalised assertion of a misapplication of s.65 of the Migration Act and fails to identify any jurisdictional error, and is, in substance, an impermissible challenge to the adverse finding of fact made by the Tribunal. There is no substance in relation to ground 3.
The applicant applied to the Department for a protection visa on 14 November 2012, which the delegate refused to grant on 4 March 2013. The applicant applied for review and appeared before the Tribunal on 6 June 2013 to give evidence and present arguments and was assisted by an interpreter as well as being represented by a migration agent. The Tribunal carefully identified the relevant law and the ministerial direction to which regard was had by the Tribunal in accordance with s.499. The Tribunal carefully set out the applicant’s claims in evidence and relevantly made adverse findings as follows:
38. On the applicant’s evidence, he did not come to the attention of the Sri Lankan authorities before leaving in 1997. The Tribunal accepts that he is a young Tamil male from northern Sri Lanka, has no Sri Lankan identity card, left illegally in 1998 during the Civil War and may return as a failed asylum seeker. Based on his evidence, the Tribunal finds that apart from the detention and torture during the family’s illegal departure from Sri Lana, the applicant’s father’s detention and interrogation by the SLA occurred while they lived in [K] and the approaches by the LTTE to the applicant and his father’s fear that the LTTE would take his sons to serve with them occurred while they were in [K], an LTTE controlled according to the applicant.
39. The Tribunal does not accept that the applicant will be suspected or perceived as having links with the LTTE because of his father’s history in Sri Lanka, which is set out above. The Tribunal accepts that the applicant’s father was detained a number of times, and suffered some harm during his detention. However, he was released on each occasion, after two or three days or some months, and was able to leave Sri Lanka, albeit illegally, after being detained by the Sri Lankan Navy and handed over to the SLA.
40. In relation to the applicant’s evidence that his father was under suspicion because he was in control of a school and helping people to get ration cards, the Tribunal gives that little weight because the applicant also described the activity as negotiating with the Sri Lankan government officers for working ID cards. That he was able to engage in such negotiations with Sri Lankan authorities is inconsistent with his being under suspicion of having links with the LTTE. Further, the Tribunal does not accept that the applicant’s father was in charge of a school because it is inconsistent with his evidence that his father was a farmer and made pots and pans.
…
42. The Tribunal does not accept that the applicant’s father would have a profile as person suspected of certain links or connections with the LTTE such as is referred to in the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (the UNHCR 2012 assessment). The Tribunal does not accept that the applicant would have such a profile because of his father’s history. It does not accept that because of his father’s history in Sri Lanka the applicant falls into any of the categories identified by the UK Home Office Border Agency as having a higher chance of being questioned and even placed in detention on arrival at Bandaranaike international airport.
43. The Tribunal has taken into account the reports referred to in the submission about the mistreatment of family members of people the Sri Lankan government believes may be security threats. However, it does not accept that the applicant’s father is perceived to be a security threat.
44. The Tribunal does not accept that being a young Tamil male from northern Sri Lanka will cause the applicant to be subjected to harm by the Sri Lankan authorities if he returns to Sri Lanka. Such a profile is not identified in the UNHCR 2012 assessment as requiring particularly careful examination or identified by the UK Home Office Border Agency as having a higher chance of being questioned and even placed in detention on arrival at Bandaranaike International airport.
45. The Tribunal accepts the following information provided in the Department of Foreign Affairs and Trade Country Information Report Sri Lanka 31 July 2013 (the DFAT 2013 Report). Sri Lankans are able to re-enter the country on temporary travel documents if they do not have their passport. DFAT assesses that Sri Lankan returnees are treated along standard procedures, regardless of ethnicity and religion. This reinforces the Tribunal in its finding that the applicant’s being a young male Tamil from the north will not lead to particular treatment on his return. It is an offence to depart other than from an official port or entry/exit and without a passport.
…
53. Based on that information, the Tribunal accepts that the applicant, who left Sri Lanka illegally and would return on temporary travel documents as a failed asylum seeker will be processed as set out above. If he returns through a UNHCR facilitated voluntary repatriation program, he will not be processed by CID. He will be arrested and charged with an offence against the I&E Act, remanded in police custody and presented to at the Negombo Magistrates at the first available opportunity. The Tribunal accepts that the applicant may be fined but does not accept that will be given a custodial sentence. The Tribunal also accepts that he may be contacted and interviewed more than once after he returns to northern Sri Lanka, based on the UNHCR 2012 assessment.
54. The Tribunal does not accept that the above treatment will subject the applicant to serious or significant harm on his return to Sri Lanka because he is identified as a young Tamil male, or a young Tamil male from northern Sri Lanka, because of his father’s history in Sri Lanka, because he left illegally and lived in India for 15 years and will return involuntarily as a failed asylum seeker without a national identity card. In making those findings, the Tribunal has taken into account that the applicant fled Sri Lanka during the civil war and has been away for more than 15 years. More than 100,000 Tamils fled to Tamil Nadu. On the information before it, it does not consider that the country information provided by the representative supports a finding that those circumstances alter the procedures that will apply to the applicant on his return or will cause him to be treated with greater suspicion. The applicant was only 14 or 15 when he left with his extended family. He had no encounters with the Sri Lankan authorities before he left. There is no evidence that he was involved in any anti-Sri Lankan government activities while in Tamil Nadu.
55. In making those findings, the Tribunal has taken into account the information in the written submission about the treatment of returnees and failed asylum seekers, including Tamil returnees from India. To the extent, if at all, there are inconsistencies, it prefers the information provided by the Department.
…
61. The submission received after the hearing puts the claims in the context of the applicant’s returning to [P]. The Tribunal does not accept the submission that the applicant would be subject to persecution on returning to reside in [P] in the form of significant economic hardship that threatens his capacity to subsist or in the form of significant physical harassment or physical ill-treatment.
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69. The Tribunal does not accept that the applicant will be denied access to basic services or the capacity to earn a livelihood which would threaten his capacity to subsist if he returns to Sri Lanka for any or all of the following reasons: he is a young, Tamil, male, from northern Sri Lanka, who left Sri Lanka illegally and lived outside Sri Lanka for 15 years, is an involuntary returnee, and failed asylum seeker with no national identity card.
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72. As stated above, the applicant’s command of spoken English is quite good. The Tribunal does not accept that he will face language difficulties that would expose him to an increased risk of harm if he returns to Sri Lanka.
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74. The Tribunal does not accept that the applicant will not be able to get an identity card if he returns to Sri Lanka. He has his birth certificate which is widely accepted for identification as set out above. For the reasons already given above, it does not accept that his father has a profile with the SLA because of his history in Sri Lanka. It does not accept that his history is likely to come to attention of the authorities if the applicant is questioned. It does not accept that the 15 year old information about detention by the SLA during the illegal departure or previous detention would be likely to come to the attention of authorities during routine identity checking or other questioning. The Tribunal accepts that the information that the applicant had left illegally and had been living in Tamil Nadu for 15 years may arise. However, it does not accept that that information would give rise to a suspicion that the applicant was affiliated with the LTTE or would be imputed to have pro-LTTE political opinion. It is relevant that more than 100,000 people fled to Tamil Nadu and that he left in a family group when he was about 15 and not of his own volition.
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76. The Tribunal has taken into account the reports provided to it of ill-treatment and torture of failed asylum seekers, including Tamils, and the report that in February 2013 the London High Court had blocked the return of a group of failed Tamil asylum seekers until those claims had been investigated, and reports of torture generally in Sri Lanka. The Tribunal accepts, as stated in the submission, that there have been reports of torture perpetrated by state actors and “those at particular risk of torture included Tamils who have an actual or perceived association with the LTTE”. The submission quotes from the March 2012 Amnesty International report entitled “Locked Away: Sri Lanka’s Security Detainees”, that sources “indicate that the Sri Lankan authorities engage in systematic torture or other ill-treatment of individuals suspected of LTTE affiliation: unlawful detention, torture and other ill-treatment are standard tools for intelligence gathering”. For the reasons given in this decision, the Tribunal does not accept that the applicant will be suspected of LTTE affiliation for any of the reasons claimed. The Tribunal does not accept that he will be at risk of torture or other harm if he returns to Sri Lanka.
77. For those reasons, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future if he returns to Sri Lanka because of, singly or cumulatively:
- His Tamil ethnicity, including that his speaking Tamil will so identify him;
- His imputed political opinion as an opponent of the Sri Lankan government, and/or a supporter of the LTTE because of his ethnicity and/or because his father’s history of detention and harm by the Sri Lankan Army (SLA) because he was suspected of supporting the LTTE and leaving India illegally;
- His membership of one or more of the particular social groups:
- Involuntary returnee to Sri Lanka with no Sri Lankan national identity card;
- Young Tamil male;
- Young Tamil male from the north of Sri Lanka;
- Tamil males who fled Sri Lanka during the Civil War and have been living outside Sri Lanka;
- Returned failed asylum seeker of Tamil ethnicity
78. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if he returns to Sri Lanka. He does not meet the refugee criterion (s.36(2)(a)).
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80. For the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm, that is:
- Arbitrary deprivation of his life, or
- Torture; or
- Cruel or inhuman treatment or punishment; or
- Degrading treatment or punishment
…
83. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Those findings by the Tribunal were clearly open. Those findings cannot be said to lack an evident and intelligible justification. I am satisfied that the applicant had a genuine hearing. I am satisfied that there was no excess of jurisdiction by the Tribunal. The application is dismissed.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 11 May 2015
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