SZUYO v Minister for Immigration

[2015] FCCA 1530

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1530

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error – consideration of the applicant’s other circumstances.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.424A, 425

BZAFM v Minister for Immigration [2015] FCAFC 41
SZTEQ v Minister for Immigration [2015] FCAFC 39
SZTIB v Minister for Immigration [2015] FCAFC 40

WZAPN v Minister for Immigration [2014] FCA 947

Applicant: SZUYO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2371 of 2014

Judgment of: Judge Driver

Hearing date: 4 June 2015

Delivered at: Sydney

Delivered on: 4 June 2015

REPRESENTATION

No appearance by or on behalf of the Applicant

Solicitors for the Respondents: Ms N Maddocks of DLA Piper

INTERLOCUTORY ORDERS

1. The orders made in the applicant’s absence are vacated.

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

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 2371 of 2014

SZUYO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (Tribunal).  The Tribunal decision was made on 22 July 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 of political, ethnic and particular social group persecution.  Background facts relating to the applicant’s protection claims, and the decision of the Tribunal on them, is set out in the Minister’s outline of legal submission filed on 27 May 2015. 

2. The applicant is a male citizen of Sri Lanka.  He arrived in Australia on 16 July 2012 and lodged an application for a protection visa on 12 February 2013.[1] A delegate of the Minister refused the visa application on 7 September 2013,[2] and the applicant sought review by the Tribunal by application lodged on 18 September 2013.[3] 

   [1] Court Book (CB) 30

   [2] CB 103

   [3] CB 122

3. The applicant attended a hearing before the Tribunal on 30 January 2014,[4] at which determinative issues were traversed. On 12 February 2014, the Tribunal wrote to the applicant in accordance with s.424A of the Migration Act 1958 (Cth) (Migration Act).[5]  On 22 July 2014 the Tribunal affirmed the decision under review, refusing to grant the applicant a protection visa.[6]

   [4] CB 207

   [5] CB 225

   [6] CB 239

4. The applicant's primary factual claims related to:[7]

   a)an incident in which he was beaten and detained by the Army, subsequent to which he was questioned on an ongoing basis;

   b)an incident in 2011, in which the applicant chased a grease man into an Army camp;

   c)an incident in 2012, during which the applicant's fishing nets floated into a Singhalese fishing area, after which the applicant was threatened by Singhalese fishermen;

   [7] See CB 89

5. The applicant also claimed to fear harm because of his Tamil ethnicity,  illegal departure from Sri Lanka, and because he sought asylum in Australia.

6. The Tribunal rejected the applicant's material factual claims as fabrications[8].  It primarily relied in so finding on the applicant's inconsistent evidence and omission to raise significant claims at an earlier opportunity.  The Tribunal considered the applicant's Tamil ethnicity claim[9] and his returnee claims[10].  The Tribunal considered complementary protection[11].

   [8] at [160]

   [9] from [192]

   [10] from [195]

   [11] from [204]

The present proceedings

1. These proceedings began with a show cause application filed on 25 August 2014.  The applicant now relies upon an amended application filed on 4 November 2014.  There are two grounds in that application:

   The RRT has failed to consider one of my central/significant claims that I fear persecution/discrimination because I am a Tamil who was born in Udappu, Puttalam, North Western Province, Sri Lanka.  The RRT has found that it does not accept that I will face a real chance of serious harm because of my Tamil race.

   The [RRT has] failed to consider one of my central claims that a Tamil who was born in Udappu, Puttalam, North Western Province, Sri Lanka and suffered harm and discrimination, will be harmed on my arrival as a failed asylum seeker from Australia.

2. Several documents are attached to the amended application which I will return to later.  The applicant relies also upon a short affidavit made by him on 25 August 2014.  I should add, in relation to that, that while the applicant requested pro bono assistance, I did not consider, when the matter came before me for first court date directions on 1 October 2014, that such assistance was warranted.  I have not changed that view. 

3. I also have before me as evidence the court book filed on 8 October 2014.  I also received an affidavit from Dalyna Khong made on 3 June 2015.  Ms Khong is an administrative assistant employed by the Minister’s solicitors and deposed as to the service on the applicant at his home address in Wagga Wagga of the Minister’s legal submissions.  Notwithstanding that those submissions had been delivered and signed for, the applicant denied receipt of them.  The submissions were read to him by the interpreter. 

4. The applicant has not taken up the opportunity I afforded him to prepare written submissions.  He did make brief oral submissions after the Minister’s submissions had been read to him.  He emphasised that the failure of his application before the Tribunal was his fault rather than that of the Tribunal.  The applicant told me that he is illiterate and had difficulty organising his thoughts.  He said he was forgetful and confused.  My assessment of him is that he is an unsophisticated person who may not be adept at presenting his claims in the best light.  There is no reason to think that the Tribunal was not fully cognisant of that. 

5. The Tribunal’s decision is a lengthy one.  The Tribunal, in my opinion, gave careful consideration to all of the applicant’s claims.  The Tribunal, in my opinion, complied with its statutory obligations.  I see no error in the Tribunal’s approach. 

6. The Minister’s submissions deal with the grounds in the amended application.  The applicant did not address those grounds in his oral submissions.  I think it likely that the grounds were suggested to him by someone else.  I agree with the Minister’s submissions. 

7. The Tribunal complied with its statutory obligations pursuant to Division 4 of Part 7 of the Migration Act. Specifically, to the extent the Tribunal’s s.424A obligations were enlivened by certain omissions from the applicant's claims at entry interview, the Tribunal complied with those obligations in the section 424A letter it issued. With respect to s.425, the delegate put the applicant's claims to have experienced incidents of past harm in issue, and the Tribunal’s decision record demonstrates it traversed its concerns with the applicant at the hearing.

8. The two grounds of the applicant's amended application allege failures to consider claims.  The applicant alleges that the Tribunal failed to consider his claims that:

   a)he feared persecution or discrimination because he is a Tamil born in a particular area; and

   b)as a Tamil born in a particular area who has suffered harm and discrimination, he will be harmed on his arrival as a failed asylum seeker. 

9. The Tribunal considered the integers of the applicant's claims and made findings of fact, open to it on the evidence and material, and for the reasons it gave.  Specifically, the Tribunal rejected the applicant's material factual claims as fabrications[12].  With respect to the grounds of the amended application, the Tribunal considered the applicant's Tamil ethnicity claim[13] and his returnee claims[14].   

   [12] at [160]

   [13] from [192]

   [14] from [195]

10. No arguable case of jurisdictional error arises out of the Tribunal’s treatment of the applicant's claim concerning his illegal departure, from Sri Lanka. 

11. First, the focus of the Tribunal’s reasoning was on whether the applicant's detention on remand was pursuant to a law of general application.  The Tribunal found that the applicant's detention on remand was in accordance with a law of general application, and that all returnees were treated the same regardless of ethnicity.  Further, the Tribunal found the general law concerning departure was not applied or enforced in a discriminatory way.  These findings do not reveal jurisdictional error, and distinguish the instant matter from WZAPN v Minister for Immigration[15].

    [15] [2014] FCA 947

12. Secondly, WZAPN has now been the subject of a decision of the Full Court of the Federal Court of Australia in three decisions, being SZTEQ v Minister for Immigration[16]; SZTIB v Minister for Immigration[17]; BZAFM v Minister for Immigration[18] which declined to follow North J in WZAPN.  This Court is bound by those judgments of the Full Court.

    [16] [2015] FCAFC 39

    [17] [2015] FCAFC 40

    [18] [2015] FCAFC 41

13. As the applicant is unable to point to any arguable case of jurisdictional error by the Tribunal, his application should be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), and I will so order.

14. However, I want to make some additional comments.  In his oral submissions, the applicant drew attention to a workplace injury.  Attached to his amended application is a document from his former employer.  The human resources officer for that former employer states that the applicant had been a permanent full-time employee as a cleaner.  It appears, however, that his work rights were revoked.  Further, having suffered a workplace injury, he was receiving workers compensation benefits, but these were limited to medical expenses. 

15. Also attached to the amended application is a letter from an orthopaedic surgeon to the applicant’s general practitioner.  That letter deals with the applicant’s medical condition following an operation on his left knee.  It was apparent, during the hearing today, that the applicant has difficulty walking or standing.  The effects following his surgery appear to be significant. 

16. As the injury was apparently sustained at work, the applicant may be eligible for compensation beyond the medical assistance he has already received.  There may be other issues that need to be taken up with his former employer.  I suggested to the applicant that he obtain advice or assistance on those issues.  The applicant requests time to remain in Australia while those issues are addressed.  That is something that could be considered by the Minister if he was so minded. 

17. The applicant does not oppose a costs order, but indicated that he may need to pay by instalments.  That is something that he can take up with the Minister’s Department or the Minister’s lawyers.

18. I will order that 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.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  9 June 2015