SZUUC v Minister for Immigration

[2016] FCCA 1753

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUUC v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1753

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the applicant was denied procedural fairness – whether the Tribunal misconstrued the relevant law – whether the Tribunal applied the wrong test – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 476.

Applicant: SZUUC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2034 of 2014

Judgment of: Judge Street

Hearing date: 12 July 2016

Date of Last Submission: 12 July 2016

Delivered at: Sydney

Delivered on: 12 July 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms C Hillary
DLA Piper Australia

ORDERS

1. The name of the second respondent be changed to the Administrative Appeals Tribunal and the need to file any further document in this regard is dispensed with.

2. The application is dismissed.

3. The applicant pay the costs of the first respondent fixed m the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2034 of 2014

SZUUC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 30 June 2014 confirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

2. The applicant arrived on Christmas Island by boat on 10 August 2012.  In summary, the applicant claimed to fear harm by reason of his Tamil ethnicity, his imputed political opinions as someone against the Sri Lankan Government, and because he has sought asylum unsuccessfully in Australia and departed Sri Lanka illegally.  The applicant claims to fear harm from the army, the police, the CRD and the Karuna Group.  The Tribunal’s decision identified the relevant law and then set out the applicant’s claims and evidence. 

3. The delegate found, having considered the applicant’s claims cumulatively, that the delegate was not satisfied the applicant had a real chance of being persecuted for a Refugees Convention reason and found that the applicant did not have a well-founded fear of persecution.  The delegate was also not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk the applicant would suffer significant harm. 

4. The applicant applied for review on 30 July 2013 of the delegate’s decision that was made on 23 July 2013. By letter dated 14 April 2014, the applicant was invited to attend a hearing on 8 May 2014.  The applicant attended on that date and was represented by his migration agent, as well as assisted by an interpreter.  The applicant attended on that date to give evidence and present submissions. 

5. Detailed submissions were provided to the Tribunal prior to the hearing and after the hearing and were referred to in the Tribunal’s reasons.  The Tribunal raised with the applicant during the hearing credibility concerns for the ground that the applicant did not face a real chance or real risk of relevant harm by reason of being a Tamil from a particular area. 

6. The Tribunal found that the applicant was not a person who would be of adverse interest to the Sri Lankan Government and its various actors if he returned to Sri Lanka and found that what would occur to the applicant as a result of his illegal departure would not give rise to the applicant suffering either serious or significant harm.  The Tribunal found, having considered the applicant’s claims both individually and cumulatively, that there is no real chance the applicant would suffer serious harm for a Convention reason, and that there is no real risk that the applicant would suffer significant harm on arrival or in transit to his home area. 

7. The Tribunal found that the applicant’s fear of persecution was not well founded. The Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm meeting one of the five forms identified under the Act. Further, the Tribunal found that it was not satisfied that the applicant met the criteria under s.36(2)(a) or s.36(2)(aa) and affirmed the decision of the delegate.

8. On 4 November 2014, the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.  The matter was on that date fixed for hearing in April.  Prior to the proposed hearing date in April of this year, the matter was adjourned for a further date to be notified, and on 4 May 2016, the applicant was notified of a hearing date fixed for today.  No documents were filed by the applicant pursuant to the further opportunity provided. 

9. At the commencement of the hearing today, the applicant asked for more time.  The Court treated this as an application for an adjournment.  The application was opposed by the solicitor for the first respondent.  When asked why the applicant wanted an adjournment, he indicated he wanted to find a lawyer.  When asked what steps he had taken to obtain a lawyer, the applicant identified that he had taken no such steps.  The applicant further submitted that he did not have money to obtain a lawyer.  When asked whether the applicant had money now, the applicant said he would have to obtain help from friends.  When asked why the applicant had not already asked friends for help, the applicant gave no satisfactory explanation. 

10. Given that this matter was commenced on 21 July 2014 the applicant has had ample time to obtain a lawyer.  No earlier notice of the adjournment was given to the solicitor for the first respondent. I am not satisfied that an adjournment would be of any utility.

11. Further, an adjournment would only unnecessarily add to the costs of the parties and utilise limited Court time.  I am not satisfied that an adjournment was warranted in the interests of the administration of justice.  It is for these reasons an adjournment was refused.

12. The grounds of the application are as follows:

    GROUND ONE:

    The Applicant was denied procedural fairness because the Tribunal failed to comply with own procedure to provide an opportunity to the applicant to comment on a particular aspect of information given to the Department of Foreign Affairs by International Organization for Migration (IOM).

    PARTICULARS:

    The opportunity was recorded at (68) of the reasons of the Tribunal. He was informed that at least one group of returnees has to wait four days before being brought before a Magistrate in condition which were below international standards, and were overcrowded, unclean and Cramped.

    He was also informed that the detainees were not reported to have been subject to more serious physical harm or threats of harm while in custody.

    GROUND TWO

    The Tribunal misconstrued section 36(2)(aa) and its jurisdiction by finding that any significant harm arising from the treatment whilst in custody in Sri Lanka on return must be intentional at paragraph 68 in circumstances where there is no requirement in the Act for the infliction of torture have an intentional element to constitute significant harm. Further and in the alternative, the Tribunal failed to apply the “real chance” test to it's determination under section 36(2)(aa).

    PARTICULARS

    At paragraph (68) The Tribunal found that he was informed that DFAT advised in 2013 that returnees being charged have being taken to a Magistrate. The requirement by the Tribunal of evidence the Department of Foreign Affairs (DFAT) would have found substantiated claims of torture is indicative of a standard of proof inconsistent with real chance test.

    GROUN THREE

    Further and in the alternative, the Tribunal erred by applying the incorrect test in relation to significant harm

    PARTICULARS

    The Tribunal required an intentional element in respect of the overcrowding and poor conditions in Police stations and goals. The correct test would be to assess whether the placement by authorities of the applicant into those known conditions was intentional thereby exposing the applicant to significant harm.

    Ground Four

    The RRT failed to assess the full integers of the applicant's claims.

    PARTICULARS

    By holding paragraph 117 that it was clear that mere negligence is insufficient having regard to the inclusion of the intention requirement of in the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment in subsection 5(1) of the Act, the RRT misdirected itself on the law in respect of the complementary protection provisions and therefore failed to consider the full integers of the applicant's claims to fear significant harm due to the severe overcrowding and poor conditions in police stations and goals in Sri Lanka.

    Further and in the alternative, the Tribunals has failed to apply the correct test in relation to section 36(2)(aa) by referring to unspecified finding above at (68 thereby failing to disaggregate findings in relation to section 36(2)(aa) .

13. At the commencement of the hearing the Court explained to the applicant that the nature of the hearing was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness.  The Court explained that, in summary, this meant it was determining whether the Tribunal’s decision was lawful and whether the Tribunal’s decision was fair.

14. The applicant confirmed that he understood what the Court had explained.  The Court further explained to the applicant that if satisfied that the decision was affected by relevant legal error it would set aside the Tribunal’s decision and send it back for further hearing, and if not so satisfied the Court would dismiss the applicant’s application. The Court explained that it would identify the evidence, and then hear submissions from the applicant, and then submissions from the solicitor for the first respondent and then solicitor’s submissions from the applicant.

15. Although invited by the Court to do so the applicant put no submissions in chief.  The Court heard from the solicitor for the first respondent as to why each of the grounds were submitted to disclose no jurisdictional error.  The applicant put no submissions in reply. 

16. In relation to ground 1, I accept the submissions of the first respondent that contrary information is excluded under s.424A(3)(a), and that, accordingly, ground 1 fails to identify any jurisdictional error.

17. In relation to ground 2 the assertion as to what the Tribunal found in para.68 is not correct.  The Tribunal correctly identified the relevant law in relation to complementary protection. There is no substance in the assertion that the Tribunal misconstrued the relevant provision or failed to apply the correct test.  Ground 2 fails to identify any jurisdictional error. 

18. Ground 3 is, in substance, a repetition of ground 2. The Tribunal correctly identified the relevant law in relation to complementary protection in paras.16 to 18, and the assertion of the Tribunal applying the incorrect test is without substance.  Ground 3 fails to make out any jurisdictional error.

19. In relation to ground 4, there is nothing in the reasons of the Tribunal to disclose any error in the assessment of complementary protection.  Ground 4 fails to make out any jurisdictional error. On the material before the Court the applicant had a genuine hearing consistent with the statutory obligations. There is nothing before the Court to satisfy the Court that the Tribunal did not comply with its statutory obligations. The Court is not persuaded on the material before the Court that there was any denial of procedural fairness in the conduct of the review by the Tribunal.

20. No jurisdictional error is made out.  The application is dismissed.

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

Date: 21 July 2016