SZUSX v Minister for Immigration - [2015] FCCA 1006

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUSX v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1006

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and ethnic persecution in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – whether the Tribunal erred in applying the tests for refugee and complementary protection considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5, 36, 91R

BZAFM v Minister for Immigration [2015] FCAFC 41
Minister for Immigration v WZAPN; WZARV v Minister for Immigration [2015] HCA 22
SZSXY v Minister for Immigration [2014] FCA 1183
SZSPE v Minister for Immigration [2014] FCA 267
SZTAL v Minister for Immigration & Anor [2015] FCCA 64
SZTCY v Minister for Immigration & Anor [2015] FCCA 85
SZTEQ v Minister for Immigration [2015] FCAFC 39
SZTGM v Minister for Immigration & Anor [2015] FCCA 87
SZTIB v Minister for Immigration [2015] FCAFC 40
SZTNT v Minister for Immigration & Anor [2015] FCCA 771
WZAPN v Minister for Immigration [2014] FCA 947
WZARV v Minister for Immigration (2014) 144 ALD 82

Applicant:

SZUSX

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1973 of 2014

Judgment of:

Judge Driver

Hearing date:

20 April 2015

Delivered at:

Sydney

Delivered on:

19 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr P Bodisco

Solicitors for the Applicant:

Michaela Byers

Solicitors for the Respondents:

Ms D Watson of Australian Government Solicitor

ORDERS

The application as amended on 20 April 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1973 of 2014

SZUSX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 13 June 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Sri Lanka and had made claims principally of political persecution. The following statement of background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them is derived from the submissions of the parties.
The applicant is a Sri Lankan Muslim who speaks Tamil. He arrived in Australia as an unauthorised boat arrival in 2012, then aged 60 years old. He claimed to fear persecution by the Muslim Congress Party due to his support of the United People’s Freedom Alliance (UPFA). He claimed to have been harassed, had threats made against him and was falsely accused of vandalism and destruction of property resulting in him appearing in court. He also claimed to fear harm from the Sri Lankan authorities because he was a Tamil and because he has sought protection in a Western country. He also referred to racial and religious tensions including a bombing which occurred close to the mosque that he was affiliated with and which resulted in him sustaining injuries.
In his protection visa application, the applicant stated that:
a)he was born on 15 May 1952[1];
b)he arrived by boat on Christmas Island[2];
c)he speaks Tamil[3] and Sinhalese[4];
d)he was from the Valaichenai city, Batticaloa Province, Sri Lanka[5];
e)he arrived without using his passport[6];
f)his travel documents "expired" and were left in Sri Lanka[7].
[1] Relevant Documents (RD) 3
[2] RD 5
[3] RD 19
[4] RD 21
[5] RD 20
[6] RD 22
[7] RD 35
By way of a statutory declaration of 20 November 2012, the applicant affirmed that:
a)his ethnicity is Tamil and religion is Muslim Sunni[8];
b)he is married with three children[9];
c)his family continue to reside in Sri Lanka (except for a son in Qatar)[10].
[8] RD 40
[9] RD 40
[10] RD 40
In the declaration, the applicant stated that he left his country[11]:
...because I feared for my life. Since 2004 I have been supporting the United People's Freedom Alliance Party (UPFAP). In or about April 2010, I began campaigning for this party in preparation for the upcoming election. This party was aligned with the government. However, we lost election to the Sri Lankan Muslim Congress Party (MCP). Although I am a Muslim I supported the other party, which was Buddhist. This is why my problems began."
[11] RD 40
The applicant stated that for the next two years he was "frequently targeted and harassed by members of the Muslim Congress Party" and "on many occasions I was beaten and assaulted"[12].
[12] RD 40
This culminated in the issuing of a summons "in or about June this year" in which the applicant claims he was falsely accused of vandalism and destruction of property[13]. These were politically motivated charges[14].
[13] RD 41
[14] RD 41
After failing to appear as required by the Sri Lankan authorities, the applicant was advised that the Crime Investigation Department (CID) had come inquiring about him[15].
[15] RD 41
The applicant claimed to have feared harm at the hands of the CID and the MCP. He claimed harm[16]:
a)as an avid supporter of the UPFAP and as a result of threatening letter he had received;
b)as a result of his ethnicity as a Tamil.
[16] RD 41
The applicant also claimed harm as a result of attacks on Muslim shops by the Karuna Group[17].
[17] RD 42
Prior to disclosing this information as part of his protection visa application, the applicant participated in an Irregular Maritime Arrival Interview on 31 August 2012 information consistent with the claim contained in his application[18].
[18] RD 94
On 18 July 2013, the applicant was notified of the refusal of his application for a protection (Class XA) visa[19].
[19] RD 111
On 29 July 2013, the applicant applied for a review of the delegate's decision[20].
[20] RD 151
On 26 February 2014, the applicant was invited to appear before the Tribunal[21].
[21] RD 162
On 11 March 2014, the applicant's advisor forwarded submissions regarding his claims[22].
[22] RD 176
On 7 May 2014, the applicant's advisors forwarded a further submission[23].
[23] RD 251
On 16 June 2014, the applicant was notified of the decision by the Tribunal affirming the decision of the delegate not to grant him the visa.
The Tribunal accepted that the applicant was Muslim and had an official position at his mosque and that an attack had occurred near the mosque and that the applicant had been severely injured as a result. It also accepted that he owned a business as he had claimed and was a prominent member of his community.
The Tribunal also accepted that the applicant had supported a particular candidate even though that candidate had switched political parties. While the particular candidate did not win his seat in the 2010 elections, the party that he belonged to won the election overall. The Tribunal accepted that the applicant had received some threats as a result of his support for the candidate who did not win his seat as well as his property being damaged and insults directed to his wife. However, it rejected his claim that he had been attacked and physically harmed by the opposing candidate’s supporter[24]. The reasons for this are set out in [47] of the Tribunal’s decision.
[24] see RD 280
The Tribunal did not accept that the applicant then went into hiding for two years as he was continuing to operate his business during that time and also appeared in court to face charges. It further did not accept that supporters of the opposing candidate were still looking for him, noting that this was a recent claim made and was not consistent with the present situation that both parties are now part of the same alliance[25].
[25] see [50] at RD 281
The Tribunal did accept that the CID had come asking questions about the applicant but that this would be in the context of investigating his illegal departure from Sri Lanka[26]. It rejected, however, a claim made at the hearing that the LTTE were also looking for him, describing this as almost an “afterthought”.
[26] at [51]
In relation to the false charges which the applicant claimed had been brought against him, the Tribunal noted that the applicant’s evidence was that they had been thrown out of court and did not consider that these would cause any problems in the future[27].
[27] at [52]
Having made these findings, the Tribunal then considered what the applicant feared upon his return to Sri Lanka. These claims are summarised at [55][28]. At [56] the Tribunal also noted a post hearing submission made by the applicant’s representative which raised the issue of effective state protection.
[28] RD 282
In relation to the applicant’s claim that he would be seriously harmed for having changed his allegiance between two political parties so as to follow a particular candidate, the Tribunal found that there was no real chance of that occurring[29].
[29] See in particular the discussion at [58]–[61] of the decision, RD 283-4
In relation to any fear of being harmed as a result of being Muslim, while it had been accepted that the applicant had been injured in the bombing incident at the mosque, the Tribunal considered that there was no real chance that the mosque would be attacked in that way again and noted that the applicant had not claimed any harm based on his religion nor that he feared such harm in the future[30].
[30] at [62]
The Tribunal did not accept that the applicant faced any harm as a result of him being a successful businessman, nor that the fact that he had been in Australia may increase any risk to the applicant of abduction or harm[31].
[31] at [64]-[65]
The Tribunal did accept that the CID had been inquiring about the applicant after his departure but considered that this would be due to his illegal departure from Sri Lanka[32].
[32] at [66]
The Tribunal also did not consider that the claim that Sri Lanka was going through a period of “Sinhalisation” had impacted on the applicant nor that it would lead to a real chance or real risk of harm on the applicant’s return to Sri Lanka.
The Tribunal noted the circumstances of the applicant’s return to Sri Lanka as a person who had left the country illegally and applied for asylum[33]. It accepted and referred to country information that the applicant would be questioned on his return and that the applicant did not fall within the classes of persons who may be at increased risk of harm on return. It did not consider that the likely questioning which may occur would amount to serious or significant harm, nor that he would be imputed with a political opinion as a perceived failed asylum seeker.
[33] at [68]–[81]
The Tribunal acknowledged that the applicant might be prosecuted on his return under the Immigrants and Emigrants Act of 1948 and took into account country information which indicated that the likely penalty to be imposed if convicted would be a fine. The Tribunal also noted information that bail was available for persons charged with such an offence and was granted relatively quickly. It also referred to information that prison conditions in Sri Lanka may not meet international standards.
The Tribunal found that if the applicant did face prosecution for illegal departure, this would not constitute persecution under the Refugees Convention as it was satisfied that it was a law of general application and not administered in a persecutory or discriminatory manner[34]. The Tribunal also considered whether the short period of time that the applicant would be held on remand would give rise to a real risk that he would suffer significant harm. It gave reasons at [84]–[93] and held that it would not.
[34] RD 289-90 [82]
The Tribunal acknowledged that prison conditions in Sri Lanka were poor and did not meet international standards[35]. However, it was satisfied that the applicant did not come within that class of persons who were at particular risk of mistreatment in prison[36] and concluded that the relatively short period of time that the applicant may spend in remand did not amount to significant harm as defined in the Migration Act1958 (Cth) (Migration Act)[37].
[35] at [81]
[36] at [85]
[37] see discussion from [84]-[89]
The Tribunal also considered the applicant’s claims cumulatively under the Refugees Convention and the complementary protection provisions and found there was no real chance that he would be persecuted in the reasonably foreseeable future and no substantial grounds for believing that there was a real risk of significant harm following his removal from Australia.

The judicial review application

These proceedings began with a show cause application filed on 15 July 2014. I gave directions in the matter on 13 August 2014 to prepare the case for a final hearing. I gave the applicant the opportunity to file and serve an amended application by 30 October 2014. At the trial of the matter on 20 April 2015, the applicant sought leave to rely upon an amended application which had not been filed. The Minister opposed the granting of leave. I granted leave subject to an order for costs thrown away by the Minister as a consequence of his preparation for hearing on the original application. The amended application contains two particularised grounds:
1. The Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act.
Particulars
a. The Tribunal accepted that the applicant will be imprisoned upon his return to Sri Lanka: [83]
i.      The Tribunal accepted that “there are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system”: [78];
ii.      The Tribunal accepted “that prison conditions in Sri Lanka are poor and overcrowded and that the Applicant may suffer discomfort” during the period of reman; [87]
iii.     The Tribunal accepted the Applicant would be held “between one night to several nights and possibly up to 2 weeks
b. the Tribunal erred in holding that poor prison conditions involving inadequate resources and overcrowding do no give rise to significant harm under Australian law.
2. The RRT applied the incorrect test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth) and/or asked itself the wrong question.
Particulars
a. By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the RRT in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protect & Another [2014] FCA 947 at [30] and [45].
The applicant also sought an adjournment of the trial of this matter, pending the outcome of judgments reserved by the High Court in against WZAPN v Minister for Immigration[38] and WZARV v Minister for Immigration[39], as well as an appeal to the Full Court of the Federal Court against my decisions in SZTAL v Minister for Immigration & Anor[40], SZTCY v Minister for Immigration & Anor[41], and SZTGM v Minister for Immigration & Anor[42]. I rejected the adjournment request, although I indicated I would reserve judgment for a reasonable time pending the judgment of the High Court in WZAPN and WZARV.
[38] [2014] FCA 947
[39] (2014) 144 ALD 82
[40] [2015] FCCA 64
[41] [2015] FCCA 85
[42] [2015] FCCA 87
In addition to the book of relevant documents filed on 28 August 2014, I have before me as evidence (subject to relevance) the affidavit of Jacqueline Zinck made on 2 October 2014, to which is annexed a transcript of the hearing conducted by the Tribunal.
The applicant and the Minister made both oral and written submissions.

Consideration

The first ground is the same as that which I dealt with in the matters of SZTAL, SZTCY and SZTGM. My decisions in those cases are on appeal to the Full Court of the Federal Court.
The applicant relies on the findings made at [87][43].
[43] RD 290
The Tribunal there accepted that:
a)prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer some discomfort;
b)the applicant may be remanded for a short period of time, between one night to several nights;
c)the applicant is aged 62 and has a shoulder injury.
Further, at [88] the Tribunal held that "mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law".
The applicant relies on the submissions advanced in SZTAL on behalf of the applicant, notably:
Section 36(2)(aa) of the Migration Act commenced on 24 March 2012. As recognised by four members of the Full Federal Court in Minister for Immigration v SZQRB, the complementary protection regime seeks to give effect to Australia's international obligations under inte1national agreements that complement the Refugees Convention: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).
In SZQRB, Lander and Gordon JJ observed of s.36(2)(aa) that the subsection:
Australia also owes protection obligations by reason of the embodiment in ss 36(2)(aa), (2A), (2B) and (2C) of the Migration Act of aspects of the CAT and the ICCPR.
Central to the applicant's contentions in respect of this ground are two propositions. The first is that the Tribunal erred because it only considered whether there was an "actual, subjective, intent" to cause harm to the applicant. Secondly, the applicant contends that the Tribunal erred because it failed to identify the relevant acts or omissions that were relevant to the inquiry about intention in circumstances where the applicant himself did not identify those acts or omissions.
The applicant essentially concedes that, in conformity with existing authority, the application, as amended, should be dismissed[44]. Further to the cases cited therein, the Minister also notes that the same arguments were rejected by Judge Emmett in SZTNT v Minister for Immigration & Anor[45]. The Minister also notes that, for the appellants to be successful in SZTAL, SZTCY and SZTGM, the judgment of the Yates J (presently binding on this Court) in SZSPE v Minister for Immigration[46] would need to be overturned.
[44] see [27] and [30] of the applicant’s submissions
[45] [2015] FCCA 771
[46] [2014] FCA 267
The applicant seeks to distinguish the decision of Yates J by reference to the Tribunal’s reasoning at [75]-[77][47] in relation to the likelihood of the applicant being detained in and questioned at Colombo airport prior to any further detention at Negombo Prison. I accept the submission of the Minister that both issues of detention are encompassed in the Tribunal’s reasoning at [82][48] where the Tribunal stated:
The Tribunal finds that even if the applicant was to face prosecution such a prosecution would not be persecution within the meaning of the Convention as it would amount to the enforcement of a law of general application applicable to all persons in Sri Lanka. The evidence available to the Tribunal does not indicate that he would be treated more harshly in relation to these offences for a Convention reason, or that these laws would be discriminatorily applied, implemented or enforced against the applicant for a Convention reason.
[47] RD 286-288
[48] RD 289
I reject Ground 1.
In respect of the second ground, the applicant notes that the matter of WZAPN has been the subject of a grant of special leave and a hearing before the High Court on 15 April 2015. The applicant conceded, however, that the authority in WZAPN has been overturned by the Full Federal Court in BZAFM v Minister for Immigration[49], SZTEQ v Minister for Immigration[50] and SZTIB v Minister for Immigration[51]. This Court is of course bound by the decisions of the Full Federal Court, unless disturbed in the High Court.
[49] [2015] FCAFC 41
[50] [2015] FCAFC 39
[51] [2015] FCAFC 40

On 17 June 2015 the High Court allowed the Minister’s appeal in WZAPN and dismissed the appeal of WZARV[52]. At [5] the High Court endorsed the decision of the Full Federal Court in SZTEQ.
[52] Minister for Immigration v WZAPN; WZARV v Minister for Immigration [2015] HCA 22
Furthermore, the Minister submits and I accept that the Tribunal in this matter made a relevant alternative finding that the application of the relevant law upon the applicant’s return to Sri Lanka was not for any Convention reason, such a law being considered to be one of general application[53]. Therefore, this case is distinguishable from WZAPN in any event[54].
[53] see [82] of the Tribunal’s reasons
[54] see SZSXY v Minister for Immigration [2014] FCA 1183 in this regard
I reject Ground 2.

Conclusion

The applicant has failed to establish any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 19 June 2015