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

[2015] FCCA 2818

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVLX v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 2818

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – dismissal due to non-appearance – whether the Tribunal applied the incorrect construction of “serious harm” within the meaning of s.91R of the Migration Act 1958 (Cth) – whether the Tribunal ought to have considered whether laws of apparent general application applied in a discriminatory manner – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.91R, 91R(1)(b), 91R(2)(a)

Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387
Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 320 ALR 467
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: SZVLX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3123 of 2014

Judgment of: Judge Manousaridis

Hearing date: 28 September 2015

Delivered at: Sydney

Delivered on: 23 October 2015

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3123 of 2014

SZVLX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka, a Hindu, and of Tamil ethnicity. He seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

The applicant’s claims for protection

1. The applicant expressed the grounds on which he claimed protection on three occasions. The first was during his entry interview as an Irregular Maritime Arrival,[1] the second was in his application for a Protection visa,[2] and the third was at the hearing before the Tribunal.[3]

   [1] CB96

   [2] CB37-39

   [3] CB240-243, [18]-[35]

2. In a statement the applicant submitted with his application for a Protection visa,[4] the applicant claimed he was arrested in 2008 because he was suspected of keeping weapons in his house. He was kept in gaol for over one month, and then released. When released, the applicant went to Allamby in Mullaitivu district rather than return to his village. He did that because he was afraid, he did not know who told the police he had weapons in his house and, he was worried he would have problems if he returned home. People had come looking for the applicant at his home in his village, at least once or twice a month. In March 2012 the applicant went to Chilaw to take part in a protest about the rising price of oil and fuel. The applicant threw a stone during the protest. After the protest became violent, the applicant returned to Allamby.

   [4] CB37-39

3. In a covering letter to the applicant’s protection visa application his agent set out the following claims:[5]

   [The applicant] has a well-founded fear of being detained, assaulted, tortured and killed if he returns to Sri Lanka. His fears are founded on the following Refugees Convention grounds:

   ·   His race and ethnicity as a Tamil in Sri Lanka

   ·   His actual or imputed political opinion as a Tamil in Sri Lanka who is perceived to be against the government;

   ·   His membership of particular social groups:

   1. As a member of the group of Tamil men who are suspected of supporting the LTTE;

   2. As a member of the group of Tamil men who, in addition to the grounds above, have escaped to, and claimed asylum in, a western country

   [5] CB2

Tribunal’s decision

1. The Tribunal found the applicant not to be a credible witness, and that he had fabricated his claims. It found the applicant’s claims were not consistent, and he produced documents that contradicted several significant aspects of his claims.[6] The Tribunal based these findings on a number of matters.

   a)First, the applicant claimed he left Sri Lanka in 1999 and travelled to Europe, returning in 2007. He also however provided evidence that his daughter was born in Sri Lanka in 2001 and claimed to be in Sri Lanka when both his father and brother died in 2001 and 2003.[7]

   b)Second, before the Tribunal, the applicant said he was in gaol for “one month exactly”, being released on or about 11 August 2008.[8] The applicant, however, had been issued with a National ID card on 23 July 2008, being in the middle of the period in which he claims he was in gaol.[9]

   c)Third, the applicant provided to the Tribunal a document which the applicant claimed provided evidence of his release from gaol which the Tribunal found was a document that evidenced the release of bond money for a case in 2007, and which did not refer to gaol. The Tribunal did not accept the document evidenced the applicant’s arrest, gaol, or anything other than involvement in some form of court matter.[10]

   d)Fourth, the Tribunal found the applicant’s claim that he was in hiding in from 2008 to 2012 to be implausible. The Tribunal found there was no reason for the applicant to relocate his family. Further, the applicant claimed he had hidden at the time of the ongoing civil war, and that the area in which the applicant claimed he had hidden was a highly militarised zone. The Tribunal did not accept the applicant would have moved his family into an area of increased danger.[11]

   e)Fifth, the applicant provided to the Tribunal a fishing permit issued on 26 March 2011 which he claimed was “obtained for him by someone else”.[12] The Tribunal did not accept that evidence; it found the applicant was operating this business throughout “his period in Sri Lanka” and his obtaining a licence indicates “the authorities were not interested in him in any adverse manner” as they are “issued by the local military officials”.[13]

   f)Sixth, the applicant changed his story over time. [14]  The Tribunal noted that in relation to the 2008 incident the applicant at first claimed he was reported to the police because “a neighbour wanted a share of his wife’s arak business”.[15] He later claimed to not know why “anyone would say he had weapons at his house”.[16]

   g)Seventh, the Tribunal found the applicant’s claimed involvement in the 2012 protest against fuel prices is “not reasonable to believe as true”.[17]

   [6] CB246, [37]

   [7] CB246, [37], first bullet point

   [8] CB240, [20]

   [9] CB246, [37], second bullet point; CB241, [21]

   [10] CB246, [37], third bullet point

   [11] CB246-7, [37] fourth bullet point

   [12] CB247, [37] fifth bullet point

   [13] CB247, [37] fifth bullet point

   [14] CB247, [37] sixth bullet point

   [15] The applicant made this claim during his irregular maritime arrival entry interview – CB96

   [16] CB37, [8]; CB247, [37] sixth bullet point

   [17] CB247, [37], seventh bullet point

2. Although the Tribunal found the applicant was not a credible witness and had fabricated his claims in support of his application, it considered whether the applicant faced a risk of harm if he returned to Sri Lanka. The Tribunal  did not accept that Sri Lankans who are Tamil now face serious harm because of their ethnicity, or that factors including being from the North or East of Sri Lanka, or being young and male put them at any greater risk.[18]

   [18] CB248, [43]

3. The Tribunal also considered whether the applicant would suffer serious harm because, if returned, he would be considered a failed asylum seeker of a western country. The Tribunal accepted the applicant would be questioned by authorities on his return, that he would be arrested and held on remand for a few days, possibly up to three days while awaiting to appear in court, that conditions in prison are cramped and probably unsanitary, and that the applicant would be fined between 50,000 and 100,000 rupees ($880 and $1,760).[19] The Tribunal found, however, that the arrest, detention and fining of returnees would not be “for reasons of a Convention ground but” but would constitute “the implementation of a law of general application relating to illegal departure from Sri Lanka”.[20] The Tribunal also found that that applicant’s likely arrest, detention, and fining is not a harm of the type and seriousness that could be considered as serious harm within the meaning of s.91R(1)(b) of the Migration Act 1958 (Cth) (Act).[21]

   [19] CB248, [44]

   [20] CB248, [45]

   [21] CB249, [46]

4. The Tribunal, therefore, found that the applicant does not face a real chance of suffering serious harm now, or in the reasonably foreseeable future, in Sri Lanka because of his actual or perceived political affiliations, his being a Tamil or his status as a failed asylum seeker. The Tribunal also found there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Sri Lanka that there is a real risk he will suffer significant harm.[22]

   [22] CB249, [48]-[54]

Grounds of review

1. The grounds on which the applicant relies are set out in a document he filed 4 December 2014 titled “Draft Amended Application”. Those grounds are:

   1. At [44] and [46] the Tribunal applied the wrong test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth) and/or asked itself the wrong question.

   Particulars

   a.By undergoing a qualitative assessment of the nature and degree of the harm experienced by the applicant when being questioned and investigated by the authorities at the airport, the Tribunal failed to apply the test of serious harm pursuant to s91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 at [30] and [45].

   2.   At [45] the Tribunal applied the wrong test in considering whether the law of general application, the Immigrants and Emigrants Act of Sri Lanka was reasonable and appropriate.

   Particulars

   a.By assessing whether the law, any period of detention and fine, or the condition of detention, are being applied in a discriminatory manner, the Tribunal failed to apply the correct test and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 at [51].

2. At the hearing before me, these grounds were translated to the applicant, and I invited the applicant to make submissions in relation to those grounds. As to the first ground, the applicant said that if he returns to Sri Lanka, he will face danger, he will be arrested, he will be taken and killed, and he will be shot. In relation to the second ground, the applicant said he was not in a position to elaborate on the ground.

3. Both grounds rely on the reasoning of North J in WZAPN v Minister for Immigration and Border Protection[23] although the grounds are different. The first ground relies on North J’s construction of “harm” for the purposes of s.91R(2)(a) of the Act. That construction, however, was rejected by the High Court in Minister for Immigration and Border Protection v WZAPN.[24] Ground 1, therefore, is not made out. And the applicant’s submission that he would be harmed if he returns to Sri Lanka does not disclose any jurisdictional error by the Tribunal.

   [23] [2014] FCA 947

   [24] [2015] HCA 22; (2015) 320 ALR 467

4. The second ground relies on the following passage from North J’s reasons for judgment:[25]

   When assessing a law of general application, the essence of the international human rights approach and of the appropriate and adapted test is similar. Both ask whether the detention was lawful, in the sense of being pursuant to a domestic law, but also by reference to the object of that law and whether the detention was proportionate to that object. The human rights approach asks whether the detention, whilst perhaps lawful, was arbitrary, whilst the question of whether the law was applied arbitrarily is implicit in the appropriate and adapted test. If applied arbitrarily, the law may not be appropriate and adapted in the sense of proportionate in the means used to achieve its object: Applicant S, at [48]. Finally, the human rights approach asks whether the detainee was treated with humanity and inherent dignity for the person, whereas conduct pursuant to a law of general application will not be considered appropriate and adapted if it offends the standards of civil societies which seek to meet the calls of common humanity: Chen, at [29].

   [25] [2014] FCA 947 at [51]

5. The Tribunal did not approach the question of whether the laws that it found would result in the applicant’s being arrested, detained, and fined (relevant laws) were laws of general application by applying what his Honour in this passage referred to as the “human rights approach”. In my opinion, however, given the High Court’s decision in Minister for Immigration and Border Protection v WZAPN,[26] it was not necessary for the Tribunal to consider whether the relevant laws were of general application by applying the “human rights approach”. The Tribunal would have been required to determine whether the relevant laws, although general in nature, operated in a discriminatory manner; but only if there was material before it which ought reasonably to have raised a question whether there was a real chance that the relevant laws, although general in nature, would be applied in a discriminatory manner.[27] In my opinion, however, there was no material before the Tribunal which ought reasonably to have suggested to the Tribunal that there may be a question there was a real risk the relevant laws would be applied in a discriminatory manner.

   [26] [2015] HCA 22; (2015) 320 ALR 467

   [27] “A law of general application is capable of being implemented or enforced in a discriminatory manner” – Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 at [42] (Gleeson CJ, Gummow and Kirby JJ)

6. Even if, contrary to this conclusion, there was such material before the Tribunal, it could have made no difference to the Tribunal’s decision, given that it found that the application of the relevant laws would not amount to serious harm and thus persecution within the meaning of s.91R of the Act. That is, even if there was material that could reasonably have suggested that the relevant laws were applied in a discriminatory manner, the Tribunal could not have concluded that that amounted to persecution within the meaning of s.91R of the Act because the Tribunal had found that the relevant laws did not operate to cause serious harm within the meaning of s.91R of the Act.

7. Ground 2, therefore, is not made out.

8. At the hearing before me the applicant submitted that the Tribunal’s decision “is infected with error”. He submitted that the interpreter before the Tribunal misinterpreted what was said at the hearing, and that the correct decision was not made. The applicant said he discerned the interpreter made “one or two errors” and, for that reason, the Tribunal made an error of law. The applicant, however, did not alert the Tribunal to these errors, and the applicant was unable to remember at the hearing before me what those errors were. Apart from the asserted mistranslations, the applicant was unable to say what error of law the Tribunal made.

9. The applicant relied on an affidavit made on 22 July 2015 to which was annexed a document titled “IND APPLICATION REGISTRATION CARD”. The applicant tendered this evidence to explain that he had made a mistake in his evidence before the Tribunal to the extent the applicant there said that he had travelled to the United Kingdom in 1999. The applicant wished to rely on the affidavit to explain what he acknowledged to me were mistakes he made before the Tribunal because of his poor memory.

10. None of these matters disclose any jurisdictional error by the Tribunal. The applicant could not remember the mistranslations he claims were made before the Tribunal. It is therefore impossible to assess that claim. Further, that the applicant may now be in a position to explain why he gave mistaken evidence on which the Tribunal relied for concluding in part that the applicant was not a witness of truth does not establish that the Tribunal made any jurisdictional error in relying on that mistaken evidence to conclude that the applicant was not a witness of truth.

Other matters

1. At the hearing the applicant requested that I refer the matter to a pro bono lawyer. In my reasons for judgment for refusing the applicant’s application for an adjournment, I said that I would consider in my final reasons for judgment whether the matter should be referred to a pro bono lawyer. In my opinion, there is nothing in the material that is before me that suggests the applicant might have an arguable case that the Tribunal made any jurisdictional error.

Disposition

1. The applicant has not established any of the grounds stated in the application. I propose, therefore, to dismiss the application. I also propose to make an order that the Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent. I will hear the parties on costs.

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

Associate: 

Date:  23 October 2015