SZUPL v Minister For Immigration and Anor (No.2)

[2015] FCCA 1524

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPL v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 1524

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – application to show cause – whether the application raises an arguable case for the relief claimed – whether the decision of the Tribunal is affected by legal error – no arguable case for the relief claimed – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Applicant: SZUPL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1782 of 2014

Judgment of: Judge Manousaridis

Hearing date: 27 May 2015

Delivered at: Sydney

Delivered on: 27 May 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondent: Ms B Rayment of Mills Oakley Lawyers

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,416.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1782 of 2014

SZUPL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The first respondent (Minister) moves for an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application for judicial review be dismissed because it does not raise an arguable case for the relief it seeks.  The application in question seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection visa.

2. It would useful if I begin by describing the applicant’s claims for protection and the Tribunal’s reasons for not granting the applicant a Protection visa. 

3. The applicant, who is not legally represented, claimed before the Tribunal that he joined the Tamil National Alliance party (TNA) in October 2009 to assist with the preparation of the Sri Lankan national parliamentary elections held in April 2010.

4. In January 2010 the applicant started doing volunteer work for the TNA.  The applicant visited farms and local villages to canvass and recruit new members, spoke to individuals and large groups about the TNA, visited schools and other public domains such as sporting clubs and held talks and erected posters and other campaign material within the community. 

5. In February 2010 the applicant received a phone call from an unidentified man threatening the applicant that “there is no guarantee on your life” if the applicant did not leave the work he was doing with the election campaign.[1] The man demanded the applicant visit a Special Task Force (STF) camp in the applicant’s area, which is a division of the Sri Lankan police.  The applicant refused to go to the camp, but attended three days later because he was afraid of the consequences.  The applicant’s fiancée’s father went with him.  The applicant was escorted into a room by five men, three who were wearing STF uniforms.  The applicant had a gun put in his mouth.  He was shoved against a wall, slapped across the face, and kicked.  The applicant was told he had to report to the camp every weekend and sign his name on a roll. 

   [1] CB60, [7]

6. The applicant did this for four months, until the camp moved.  After the applicant was released, the applicant hid at his cousin’s place and ceased public political activity but continued to organise others to erect posters until the end of the elections in April 2010.  Also in April 2010, two men in an unidentified van visited the applicant’s fiancée’s (now his wife’s) house, threatened the applicant’s fiancée with a gun and demanded to know the applicant’s whereabouts.  After this incident, the applicant’s fiancée joined him in hiding and the applicant kept a low profile and did not work for over a year.

7. In late 2011 and in the beginning of 2012, preparations for the Sri Lankan Provincial Council elections commenced.  The applicant became fearful that he would again be harassed by the STF and made plans to flee Sri Lanka to protect his life and his family.  He departed Sri Lanka in May 2012. 

8. The applicant claimed that he feared that he will be detained, interrogated, tortured, abused and killed if he returns to Sri Lanka.  He claimed he feared harm and mistreatment because he is a Tamil, and because of his political opinion, because he was a former member of the TNA and will be therefore perceived to have a pro-LTTE opinion because of his Tamil ethnicity.  The applicant also claimed he fears harm from the SLA, STF, CID and other paramilitary organisations.  He also claimed fear because he would be a failed asylum seeker.

9. The Tribunal accepted that the applicant supported the TNA but it did not accept that he became a member or undertook the range of campaign activities the applicant claimed he did.  The Tribunal found the applicant’s reason for joining the TNA in October 2009 to be “vague” and “there was very little sense” of the applicant’s activities during the campaign at the Tribunal hearing,[2] and the Tribunal “detected very little real political interest or engagement” from the applicant.[3]

   [2] CB339, [24]

   [3] CB339, [25]

10. In relation to the incidents the applicant claimed occurred in February and April 2010, the Tribunal had “several significant concerns about the credibility of the applicant’s claims” and considered the applicant’s evidence about this to be “unreliable”.[4]  The Tribunal noted that the applicant’s evidence at the hearing conflated the February and April 2010 incidents and the details provided by the applicant “did not fit well” with his written claims.[5] The Tribunal took into account the submissions made by the applicant’s representative that the applicant was nervous at the hearing and mixed up the elements of the incidents.  However, the Tribunal’s concerns about the applicant’s claims were “significant”.[6]  The Tribunal did not accept the applicant was targeted by Sri Lankan authorities and required to attend the military camp or that he was assaulted or he was required to cease political activities or required to report regularly to the authorities.

    [4] CB341, [33]

    [5] CB342, [33] first dot point

    [6] CB343, [34]

11. The Tribunal also did not accept that any officials or anyone else targeted the applicant after the elections or attended on the applicant’s wife and demanded to know the applicant’s whereabouts.  The Tribunal did not accept the applicant was an activist or campaigner for the TNA during the elections or that he was perceived as such by the Sri Lankan authorities or that he was targeted by the authorities because of any TNA association.

12. In relation to the applicant’s claim that he has been or will be harmed because of his Tamil ethnicity, the Tribunal did not accept that the applicant had experienced harm amounting to persecution, as a Tamil.  The Tribunal based its finding on the applicant’s circumstances and independent country information.  The Tribunal was not satisfied the applicant faced a real chance of serious harm because of any actual or imputed political opinion.

13. The Tribunal accepted that the Sri Lankan authorities would be able to identify the applicant as a failed asylum seeker on his return, but on the basis of country information it found neither the processing the Sri Lankan authorities undertook upon failed asylum seekers’ return nor the applicant’s membership of a particular social group of failed asylum seekers amounted to the applicant facing a real chance of serious harm amounting to persecution.

14. In relation to the applicant’s illegal departure from Sri Lanka, the Tribunal accepted that the applicant may be arrested and charged and detained for a few days in prison pending a bail hearing.  It also accepted that the conditions in the prison are poor but the Tribunal was not satisfied that this treatment amounted to serious harm.  The Tribunal also considered these integers of the applicant’s claims against the complementary protection criterion but was not satisfied there was a real risk the applicant will suffer significant harm.

15. The application records two grounds.  These are as follows: 

    (1)That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error;

    (2)More details will be provided by the legal representative.

    No further details as indicated in ground 2 have been provided by any legal representative or by the applicant.  In effect, therefore, the application states one ground of review.

16. At the hearing, when the applicant was invited to make submissions in relation to ground 1 on the application, the applicant said that he was in danger and that’s why he came to Australia.  He said that if he returns to his home country, there will be danger to his life.  He also said he was diabetic, suffering from mental issues, and did not know what would happen if he were to return to Sri Lanka. 

17. Those matters do not disclose any jurisdictional error.  They are submissions directed to the question of whether the applicant has a well-founded fear of persecution.  As I informed the applicant during the hearing, this Court does not have jurisdiction to determine whether the applicant has a valid claim for a Protection visa.  The Court’s only function is to determine whether on the grounds specified in the application for the review, the Tribunal has made some legal error which amounts to a jurisdictional error. 

18. In reply to the submissions made by Ms Rayment, who appeared for the Minister, the applicant made a further submission which related to his having provided evidence to the Tribunal, in particular to two letters, and submitted that he did not know why the Tribunal did not accept what was in those letters.  Again, these submissions do not point to any jurisdictional error on the part of the Tribunal, but simply manifest disagreement with findings the Tribunal made.  There is no doubt in my mind that the reasons the Tribunal gave for not placing weight on those documents were reasons that were reasonably open to the Tribunal.

19. That then leads me to the ground that is specified in the application.  It does not raise an arguable case for the relief sought in the application for judicial review.  It is a bald allegation of legal error which is not supported by any particulars and it does not otherwise engage with the Tribunal’s reasons for affirming the delegate’s decision. 

20. I propose therefore to make an order pursuant to r.44.12(1)(a) of the FCC Rules to dismiss the application on the ground that it discloses no arguable case for the relief it seeks. I also propose that the applicant pay the Minister’s costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  4 June 2015