SZVWI v Minister for Immigration & Border Protection

[2015] FCCA 934

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWI v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 934

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited:
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

SZSPE v Minister for Immigration [2014] FCA 267
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: SZVWI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3544 of 2014

Judgment of: Judge Emmett

Hearing date: 13 April 2015

Date of Last Submission: 13 April 2015

Delivered at: Sydney

Delivered on: 13 April 2015

REPRESENTATION

The applicant appeared in person with a Tamil interpreter.

Solicitor for the Respondents: Ms Hailey Musgrove
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3544 of 2014

SZVWI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 19 December 2014, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 10 December 2014 (“the RRT”).

2. On 12 March 2015, the applicant attended a directions hearing before a Registrar of this Court.

3. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court.

4. The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 6 April 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 6 April 2015.

5. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

6. The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), a copy of which was given to the applicant.

7. Rule 44.12 of the Rules provides as follows:

   “(1) At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

8. Relevantly, r.44.13 provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

9. The applicant was unrepresented before the Court this morning, although had the assistance of a Tamil interpreter.

10. I explained to the applicant that the role of this Court is very different to that of the RRT and that is not for this Court to reconsider the applicant’s claims and make different factual findings or reach different conclusions. I explained that disagreement with the findings and conclusions of the RRT rarely by itself establishes such a mistake. I explained that this Court has no power to interfere with the decision of the RRT unless this Court is satisfied that the decision is affected by a mistake that goes to the jurisdiction of the RRT.

11. The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with the directions made by the Registrar on 12 March 2015 or otherwise.

12. The applicant’s claims before the RRT and the RRT decision record are accurately summarised in submissions of the first respondent, filed on 1 April 2015, as follows:

    “Applicant’s claims and delegate’s decision

    The applicant, a citizen of Sri Lanka, arrived in Australia on 5 June 2012 as an offshore entry person (Court Book “CB” 134). On 16 October 2012, the Minister exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) (“Act”) permitting the applicant to make an application for a protection (class XA) visa (CB 134). On 14 January 2013, the applicant applied for a protection (class XA) visa (CB 75). On 23 August 2013, a delegate of the Minister refused to grant the protection visa (CB 152). On 28 August 2013, the applicant applied to the Refugee Review Tribunal (“Tribunal”) for a review of the delegate’s decision (CB 154).

    The applicant claimed to fear harm in Sri Lanka because of his ethnicity as a Tamil, his membership of a particular social group of young Tamil males, and because he would be targeted by the security forces (CB 203 at [9]).

    The applicant claimed that his father used to repair engines of fishing boats and the Navy asked him to repair an engine of theirs; his father was late in reporting and because he was a Tamil he was beaten by the Navy personnel; after that time his father could not walk properly, his condition deteriorated, and he died in 1997 (CB 202-203 at [7]).

    The applicant also claimed to fear harm from the Criminal Investigation Department (“CID”). The applicant claimed that whilst driving his taxi in April 2012, he picked up two men. The applicant claimed that he was later sought by the CID in relation to this matter (CB 202 at [2]); when the applicant returned home from fishing his mother said that two persons from the CID with weapons had inquired about him, and wanted to know if he had dropped two people somewhere in his taxi. The applicant claimed that, as a result of the incident, he moved to Mullaitivu. The applicant claimed that while he was away, the CID came to his home, inquired about him and threatened his family. The applicant claimed that he feared for his life and decided to leave the country (CB 203 at [8]).

    Tribunal's proceedings and decision

    On 4 December 2014, the applicant appeared before the Tribunal to give evidence and present arguments (CB 191) and, on 10 December 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (CB 201).

    The applicant’s claims relating to incidents prior to his arrival in Australia

    Having considered the applicant’s claims, the Tribunal did not accept the applicant had given truthful evidence in relation to his reasons for leaving Sri Lanka (CB 204 at [15]).

    The Tribunal said, although it accepted the reasons for the applicant’s father’s victimisation and beating was because he was a Tamil, the applicant’s evidence indicated the incident was in relation to his father’s employment (CB 205 at [20]).

    The Tribunal did not accept the applicant’s reaction in immediately leaving his village, without making any attempts to resolve the situation with the CID officers, was credible. The Tribunal considered even if fearful of presenting himself for inquiries, given his innocence and lack of a prior adverse history, the applicant would not have left his mother to deal with the ramifications of him fleeing from his village without responding to inquiries from the CID. The Tribunal considered the evidence in relation to these issues raised serious concerns as to the credibility of the applicant’s claims in relation to his reasons for leaving Sri Lanka (CB 205 at [21]; CB 207 at [26]).

    The Tribunal did not accept the applicant’s explanation for the inconsistency between his written statement and oral evidence during the hearing in relation to what he told his mother. The Tribunal said it considered the applicant’s evidence in relation to this issue raised further concerns as to the credibility of his claims (CB 206 at [22]).

    The Tribunal considered the applicant’s evidence that the CID had threatened his mother, yet left his home when his mother told them she did not know where he was, to be not credible (CB 206-207 at [23]).

    The Tribunal considered the applicant’s evidence in relation to his claims following his departure from his home lacked credibility and were further indicative of the fact his claims had been manufactured (CB 207 at [24]).

    The Tribunal did not accept the applicant’s explanation for the inconsistency in relation to whether he had returned to see his mother before he departed Sri Lanka. The Tribunal considered the inconsistency and lack of credibility in relation to this issue were indicative of the fact the applicant had manufactured this claim (CB 207 at [25]).

    The Tribunal considered the applicant’s evidence that the CID was continually coming to his home, even after his departure from Sri Lanka, was not credible (CB 207-208 at [27]). The Tribunal did not accept the applicant’s mother would be asked about his whereabouts, yet the officers would not ask his brother who also lived in Uddappu, and it did not accept the applicant’s explanation as to the issue (CB 208 at [28]).

    The Tribunal considered the applicant’s evidence in relation to his brother coming to Australia yet not knowing his brother’s reasons for coming were not credible. On the facts before it, the Tribunal considered the applicant’s lack of knowledge about his brother’s reasons for seeking protection was indicative of the fact the applicant had manufactured his claims and it was not only he, but also his brother who sought to leave Sri Lanka for Australia by boat, and their reasons for doing so were not motivated by their need for protection, but by other reasons (CB 208-209 at [30] and [32]).

    Having considered the totality of the evidence, the Tribunal was not satisfied the applicant’s claims in relation to the CID seeking him in relation to transporting two men in his taxi were truthful. The Tribunal considered it was evident that the applicant had manufactured his claims around his actual circumstances to obtain residence in Australia. The Tribunal did not accept the applicant travelled from Uddappu to Mullaitivu in April 2012 because he was sought by the CID, but considered the applicant’s evidence indicated that this travel was for the purposes of his fishing. The Tribunal considered the applicant then returned from Mullaitivu, not because he was seeking to avoid harm from the CID, but because he wished to leave Sri Lanka for reasons entirely unrelated to those he had put forward (CB 209 at [31]-[32]).

    The applicant’s claims about his return to Sri Lanka

    The Tribunal accepted that the applicant departed Sri Lanka unlawfully (CB 212 at [37]).

    The Tribunal considered the applicant’s claims in relation to his inability to pay the fine and the possibility of lengthy imprisonment for breach of immigration laws. The Tribunal did not accept the evidence indicated that any fine imposed at that point had to be paid immediately such that the applicant would be held in remand until he paid that fine (CB 214 at [42]).

    Having regard to the evidence provided by the applicant’s representative, the Tribunal considered that the evidence did not support a finding that Tamils returning from overseas who had sought asylum and departed illegally were being singled out and mistreated upon their return, and it was not satisfied there was any evidence of persons being harmed or mistreated in relation to the payment or non-payment of the fine which is levied at a later time. The Tribunal was not satisfied that the fine was generally of such a scale that persons were unable to pay it, nor was it satisfied that the scale of the fine could reasonably be seen to constitute serious harm (CB 214 at [42]).

    The Tribunal was not satisfied the applicant had any particular profile such that there was a real chance of serious harm upon his arrival. However, the Tribunal accepted the applicant would be questioned at the airport and there was a possibility he would be “held for a limited period” in remand whilst awaiting bail. The Tribunal found that that the cramped and uncomfortable conditions “applied to persons in remand generally and not specifically Tamils,” and therefore did not amount to systemic and discriminatory conduct as required by s 91R(1) of the Act (CB 214 at [43]).

    The Tribunal found that the evidence did not establish that returnees were subject to mistreatment whilst in remand and that independent evidence indicated the applicant would not be subject to a custodial sentence, and the prospect of him being detained for a “prolonged period” of time as a penalty for illegal departure was remote. Further, the Tribunal considered that there was very limited evidence of returnees suffering serious harm. The Tribunal therefore was not satisfied that there was a real chance the applicant would suffer serious harm on arrival in Sri Lanka or upon his return to his village because he was a Tamil, a failed asylum seeker or because he left Sri Lanka illegally without proper documentation or for any other Convention reason (CB 214 at [43]).

    The Tribunal’s conclusions

    Considering the information before it individually and cumulatively, the Tribunal was ultimately not satisfied there was a real chance that on return to Sri Lanka the applicant would suffer serious harm amounting to persecution for the Convention reasons of his Tamil race/ethnicity, his actual or imputed political opinion or his membership of a particular social group. Accordingly, the Tribunal was not satisfied the applicant had a well-founded fear of persecution in Sri Lanka for a Convention reason: s 36(2)(a) of the Act (CB 215 at [44]; CB 216 at [48]).

    In considering the complementary protection criterion, the Tribunal referred to its anterior findings that it was not satisfied the applicant would suffer harm of any kind on return to Sri Lanka for the reasons he had claimed (CB 215 at 46]).

    The Tribunal reiterated that it had accepted the applicant would likely face arrest on charges of illegal departure, that he could be placed in remand for a relatively brief period while awaiting a bail hearing, and that he would later be fined if found guilty. But the Tribunal was not satisfied there was evidence of mistreatment of persons amounting to significant harm pursuant to s 36(2A) of the Act. Nor was the Tribunal satisfied the applicant would be exposed to significant harm for any other reason or that the fine that was the most likely penalty amounted to significant harm (CB 215 at [46]). The Tribunal ultimately was not satisfied there was a real risk the applicant would suffer significant harm in Sri Lanka pursuant to s 36(2)(aa) of the Act (CB 215 at [47]).”

13. The applicant’s application for judicial review, filed on 19 December 2014, stated the grounds of review as follows:

    “1. The RRT has declined its jurisdiction failing to assess as to whether I would be persecuted and/or discriminated as a Tamil from Andimunai Udappu (a particular part of Sri Lanka) but it has assessed that there is no persecution for Tamils generally.

    2. There is information before the RRT and the country information on Sri Lanka indicates that the failed asylum seekers are held in overcrowded jails which have very poor conditions. The RRT made an error when deciding that the punishment would not intentionally inflicted upon me if I was placed in jail on remand on my return to Sri Lanka. Because the country information on Sri Lanka before the RRT indicates that the jails were subject to overcrowding and poor conditions.”

14. The grounds of the application were interpreted for the applicant and the applicant was invited to make submissions in support of the grounds.

15. The applicant was distressed and made the same submission in relation to each of the grounds, that he is fearful to return to Sri Lanka because he will be harmed. Those were the only submissions the applicant made in support of either of his grounds. Plainly those oral submissions do not identify any error capable of review by this Court.

16. In Ground 1, the applicant asserts that the RRT declined to consider or assess whether he would be persecuted or discriminated against as a Tamil from his particular area in Sri Lanka and that the RRT assessed or concluded that there was no persecution against Tamils generally.

17. A fair reading of the RRT’s decision record makes clear that the RRT spent some significant part of its decision in considering whether the applicant’s Tamil ethnicity and the fact that he was from Udappu in the North Western Province was sufficient to establish a real chance that he would he harmed for that reason. The RRT accepted that in the past there was evidence to suggest that Sri Lankan citizens of Tamil ethnicity did suffer at the hands of authorities. However, based on country information before it, the RRT did not accept that the evidence establishes that Tamils are at risk of serious harm on the basis of their ethnicity alone or because they are from a particular part of Sri Lanka that had been an LTTE-occupied area, such as Udappu, where the applicant came from.

18. The RRT did not accept that the applicant had any particular profile such that he would suffer serious harm for reasons of his ethnicity as a Tamil or because of his links with the north-western part of Sri Lanka. Accordingly, the RRT was not satisfied that the applicant did have, or continues to have, any political profile, imputed or otherwise, or that there is a real chance that he will be harmed because he is a Tamil from the north-west.

19. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

20. There is nothing in the RRT’s decision record to suggest that the country information that it identified with great specificity was not information upon which the RRT was entitled to rely. There is nothing in the RRT’s reasoning to suggest that the weight that it placed on that evidence was not open to it.

21. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

22. The applicant’s complaint that the RRT failed to assess his claim of persecution and/or discrimination as a Tamil from Udappu is not made out on the face of the RRT’s decision record. Similarly, there is nothing on the face of the RRT’s decision record to suggest that the RRT’s finding that it did not accept that Tamils are at serious risk of harm on the basis of their ethnicity alone, or because they are from a particular part of Sri Lanka which was an LTTE-occupied area, was not open to it on the evidence and material before it, and for the reasons it gave.

1. In the circumstances, Ground 1 is not made out.

2. It is difficult to understand precisely the nature of the complaint that the applicant makes in Ground 2.

3. The first respondent’s solicitor, Ms Musgrove, understood the complaint to be relating to a complaint about the RRT’s findings in relation to complementary protection. This was because of the use of the words in the ground that the RRT made an error when deciding that punishment would not “intentionally” be inflicted upon the applicant if he was placed in jail or remand on his return to Sri Lanka. In support of that proposition is a complaint about the country information upon which the RRT relied in relation to the condition of jails in Sri Lanka. In the absence of the applicant making any other relevant submission, I accept that the first respondent’s understanding is the most likely in relation to Ground 2.

4. In considering the significant harm that may be faced by applicants when considering complementary protection, the RRT is bound to have regard to s.36(2A) of the Migration Act 1958 (Cth) (“the Act”), which requires that the harm be found to be intentionally inflicted (see SZSPE v Minister for Immigration [2014] FCA 267).

5. In considering complementary protection, the RRT accepted that the applicant may, upon return, be remanded in conditions that were cramped and uncomfortable but the RRT was not satisfied that there was evidence of mistreatment of such persons that amounted to torture, arbitrary deprivation of life, or intentional mistreatment involving torture, or inhumane treatment, or punishment, or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A) of the Act. The RRT noted that there was a high level of media interest in returnees but that there had been no reports of such persons suffering the sort of treatment and harm contemplated by s.36(2A) of the Act.

6. The RRT concluded that the applicant would not be exposed to significant harm if he was to be returned to Sri Lanka, either for any Convention reason under s.36(2)(a) of the Act or the alternative criterion in s.36(2)(aa). The RRT accepted that the applicant may face a fine but was not satisfied that a fine constituted significant harm for the purposes of s.36(2A) of the Act.

7. I accept the first respondent’s submission that the findings of the RRT and its consideration of complementary protection were in accordance with the recent decision of the Full Court of the Federal Court of Australia in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 in the manner in which the RRT considered complementary protection and the findings that it made.

8. The RRT’s findings and conclusions would appear to be open to it on the evidence and material before it and for the reasons it gave. The applicant’s complaints appear to be no more than a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

9. Whilst I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the RRT capable of establishing jurisdictional error, and none is apparent on the face of the RRT’s decision record. The RRT referred to the relevant law in affirming the decision under review and applied it to the facts it had found.

10. In the circumstances, I am not satisfied that the applicant has raised an arguable case for the relief claimed.

11. Accordingly, in the exercise of the court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 19 December 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

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

Associate:

Date:  24 April 2015