SZURG v Minister for Immigration

[2015] FCCA 2604

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZURG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2604

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:

Migration Act 1958 (Cth), ss.36, 499

WZAPN v Minister for Immigration [2014] FCA 947
Minister for Immigration v WZAPN [2015] HCA 22

Applicant: SZURG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1901 of 2014

Judgment of: Judge Driver

Hearing date: 22 September 2015

Delivered at: Sydney

Delivered on: 22 September 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Ms N. Blake of Clayton Utz

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

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

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1901 of 2014

SZURG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 6 June 2014.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Sri Lanka and had made claims for protection on various bases.

2. The following statement of background facts is derived from the submissions of the Minister. The applicant is a citizen of Sri Lanka who applied for a protection visa on 14 December 2012[1].

   [1] Court Book (CB) 17-60.

3. On 23 December 2013, the delegate refused to grant the protection visa[2].

   [2] CB 124-146.

4. On 3 January 2014, the applicant applied to the Tribunal for review of the delegate's decision[3].

   [3] CB 147-153.

5. On 6 June 2014, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa[4].

   [4] CB 228-238.

6. On 9 July 2014, the applicant applied for judicial review of the Tribunal’s decision.

Applicant’s claims

1. The applicant's claims were made in a statutory declaration accompanying his protection visa application[5]through written submissions to the Department[6], at interview with the delegate[7], and through written and oral submissions to the Tribunal[8]. 

   [5] CB 44-49.

   [6] CB 86-104, 114-118.

   [7] CB 124-146.

   [8] CB 168-180, 215-224, 233-234.

2. The applicant claims to fear harm from the Sri Lankan authorities and paramilitary groups because he is:

   a)of Tamil ethnicity, from the north of Sri Lanka;

   b)a family member of a former member of the Liberation Tigers of Tamil Eelam (LTTE) and a friend of LTTE members;

   c)imputed with an adverse political opinion as an LTTE associate; and

   d)a failed Tamil asylum seeker who departed illegally from Sri Lanka.

3. In support of his claims, the applicant asserted that:

   a)his older sister was forcibly recruited into the LTTE between 1995 and 1998.  Two of his close friends also joined the LTTE, and were subsequently killed in combat;

   b)in 2007 he was detained by the military and questioned about his and his friends' involvement with the LTTE.  He was allowed to go home after several hours but was subjected to ongoing questioning and harassment; and

   c)two other friends of the applicant have subsequently disappeared.   

Tribunal findings

1. On the basis of UNHCR country information, the Tribunal did not accept that the characteristics of being Tamil, from the North, or a young Tamil male from an area that was formerly controlled by the LTTE would give rise to a real risk of harm without an additional “profile factor[9]”.

   [9] CB 235-236 at [53]-[56].

2. The Tribunal set out UNHCR information about profiles that would expose individuals to risk, but did not accept that the applicant has been imputed by authorities with an LTTE association.  This was because:

   a)he has no history of personal involvement with the LTTE;

   b)although the Tribunal accepted that the applicant's sister was forcibly involved with the LTTE between 1995 and 1998, she is living in Sri Lanka, along with the applicant's other two sisters and parents;

   c)the applicant was not alleged to have faced adverse attention until nearly 10 years after his sister left the LTTE.  The Tribunal considered the submission that this was because he did not reach adulthood until that time to be “speculative”;

   d)although the Tribunal accepted that persons living in the North would have known LTTE members, this alone would not lead the authorities to impute an association with the LTTE; and

   e)the Tribunal did not accept that the applicant had such close relationships with his friends who joined the LTTE that this would have resulted in an adverse political opinion being attributed to him.  The Tribunal also did not accept that one of the applicant's friends disappeared in 2011, requiring the applicant to leave the country[10].

   [10] CB 236-237 at [57]-[61].

3. The Tribunal accepted that the applicant could have been subject to monitoring and questioning with the escalation of hostilities between 2006 and 2009, but did not accept that this was above the monitoring of the general community[11].

   [11] CB 237 [62].

4. With respect to the claims arising from being a failed asylum seeker, the Tribunal referred to DFAT information about the treatment of persons who returned to the country after departing illegally which indicated that such persons may be subject to questioning, surveillance or brief detention.  The Tribunal did not accept that this amounted to either serious or significant harm[12].

   [12] CB 237-238 [65]-[67].

5. Accordingly the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed[13]. 

   [13] CB 238 [68].

The present proceedings

1. These proceedings began with a show cause application, filed on 9 July 2014.  That application set out a narrative that did not point to any jurisdictional error.  When the matter came before me for first court date directions on 12 August 2014, I provided the applicant with the opportunity to file and serve an amended application and additional evidence.  He has taken up those opportunities.  In addition to the affidavit filed with his original application, the applicant filed a second affidavit on 14 October 2014, which attached, among other things, the Tribunal’s credibility guidelines.  I accepted both affidavits subject to relevance.  The applicant now relies upon an amended application filed on 27 October 2014. 

2. The applicant raises three grounds of review in the amended application. Those grounds are:

   1.      My RRT decision is affected by legal error

   2. The RRT has failed to apply the correct test under section 91R(2)(a) of the Migration Act 1958 (Cth).

   Particulars

   The RRT failed to find that the Applicant would face serious harm despite having held, at paragraphs 63, 64 and 67 of the decision, that the Applicant had departed Sri Lanka illegally and would face being detained when he was returned to Sri Lanka, as per North J, WZAPN v Minister for Immigration and Border Protection [paras 30, 45].

   3.    My application for complementary protection has not been separately and properly assessed

3. In addition, and somewhat confusingly, the applicant filed an outline of submissions on 14 October 2014, which refers to grounds of review which overlap with those in the amended application, but provide some different particulars, one less ground and two additional grounds.  I will deal with the issues raised in the submissions shortly.

4. Both the grounds in the amended application and in the submissions, draw support from the decision of the Federal Court in WZAPN v Minister for Immigration[14].  As a consequence of that, I made orders in chambers on 15 October 2014, adjourning the show cause hearing in this matter until the Minister’s application for special leave to the High Court to appeal against the decision in WZAPN had been dealt with.  The hearing today took place with the benefit of the High Court decision. 

   [14] [2014] FCA 947.

5. The applicant sought a further adjournment of today’s hearing so that he could obtain legal advice and representation.  I refused an adjournment, taking into account the lengthy period of time the proceedings had been before the Court and the fact that it was apparent that the amended application and submissions had been prepared with legal assistance.  I also indicated to the applicant that I would not be constrained by his amended application but would consider for myself whether any arguable case of jurisdictional error by the Tribunal was apparent, although as matters transpired, no arguable case of jurisdictional error was apparent to me from my own examination of the material.

6. The first ground in the amended application is a general assertion of legal error.  Although it is unparticularised in the amended application, particulars are provided in the applicant’s submissions.  The particulars assert that the error is the same as that identified in WZAPN.   Relevantly, the Tribunal found that although the applicant faced a risk of a brief detention by the Sri Lankan authorities by reason of his illegal departure from Sri Lanka, that would not amount to either serious harm in respect to the Refugees Convention, or significant harm as required by the Complementary Protection legislation[15]. 

   [15] CB 238 at [67].

7. In light of the Minister’s successful appeal in Minister for Immigration v WZAPN[16], it is, in my opinion, no longer open to the applicant to assert error of the kind set out in Ground 1.  In short, although the Tribunal considered that the applicant might be detained, it did not consider that he had a profile that would expose him to a real risk of harm in detention. In any event, as has been established in other cases, the application of the Sri Lankan criminal law on a non-discriminatory basis does not establish any nexus with the Refugees Convention.  The Tribunal was also entitled to conclude that the harm that might hypothetically be experienced by the applicant in detention, would not amount to significant harm for the purposes of complementary protection. 

   [16] [2015] HCA 22.

8. The second ground is in substance, an alternative version of the first ground.  The particular in the amended application again referred to the decision of North J in WZAPN[17]. The ground is not arguable for the same reasons as Ground 1 is not arguable.

   [17] [2014] FCA 947.

9. The third ground in the amended application asserts that the applicant’s claim to complementary protection has not been separately and properly assessed.  Curiously, that ground is omitted from the applicant’s written submissions. 

10. Ground 3 is unparticularised although clear enough on its face. Under this ground, the applicant asserts that the Tribunal did not assess his claims for protection under the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act). The Minister submits that Ground 3 is factually misconceived. The Tribunal assessed the applicant's claims but did not accept that there was a real risk of the applicant suffering significant harm as a result of his being removed from Australia[18].

    [18] See [10]-[14] above.

11. When read in the context of the applicant's submissions filed on 14 October 2015 relating to the other grounds of review, it appears that the applicant's objection is to the manner in which the Tribunal dealt with his claims regarding illegal departure from Sri Lanka. 

12. As summarised at [13] above, the Tribunal considered country information regarding the consequences of illegal departure. The Tribunal found that the applicant would face questioning, some surveillance, and possibly a brief period of detention. The Tribunal considered whether these consequences would amount to significant harm, and found that they would not. The fact that the Tribunal also found that they would not amount to serious harm does not demonstrate any relevant error on the part of the Tribunal. In short, it is apparent from the Tribunal’s reasons that it did separately and lawfully assess the applicant’s claim to complementary protection.

13. The submissions assert two additional grounds. Both involve an allegation of unreasonableness. The first additional ground asserts that the Tribunal made an unreasonable decision in relying upon a report of the Department of Foreign Affairs and Trade (DFAT) as proof of the content of foreign law. It appears from the detail of the submissions that this is a reference to [65] and [66] of the Tribunal decision in which the Tribunal refers to a report from DFAT about the application of the criminal law of Sri Lanka to persons who depart that country undocumented. In my opinion there was nothing unreasonable in the Tribunal’s reference to that report. Indeed the Tribunal was arguably obliged to have regard to the report pursuant to the Ministerial direction made under s.499 of the Migration Act[19].   

    [19] See [19] of the Tribunal’s reasons at CB 231

14. The second additional ground also asserts unreasonableness or in the alternative, a failure to consider relevant materials.  The material identified is the Guidance on the Assessment of Credibility annexed to the applicant’s second affidavit:

    8.1The tribunal will have due regard to information which assists the tribunal to reach the correct or preferable decision, including expert evidence, information about conditions and laws in an applicant’s country of origin and other relevant sources of information.

15. This is not a decision which turned in any fundamental way on an adverse assessment of credibility.  There was no issue of credibility in relation to the risk faced by the applicant on return to Sri Lanka as a failed asylum seeker.  There is, in my opinion, no substance to the assertion of jurisdiction error in this regard. 

16. Having considered the grounds raised by the applicant and the matter generally I have concluded that the applicant has failed to establish an arguable case of jurisdiction error by the Tribunal. 

17. I will therefore order that the application be dismissed pursuant rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

18. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was first filed.  The applicant opposed an order for costs on the basis that he is in immigration detention and is impecunious.  As has been repeatedly stated, impecuniosity is not a reason for the Court to refrain from making a costs order.  I am satisfied that costs have been reasonably and properly incurred in the sum prescribed in the Court scale. 

19. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  25 September 2015