SZVYE v Minister for Immigration
[2016] FCCA 1985
•1 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVYE v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1985 |
| Catchwords: MIGRATION – Review of a decision of the former Refugee Review Tribunal – refusal of a protection visa – applicant disbelieved in part and applicant’s fears of persecution otherwise found not to be well-founded and that he did not qualify for complementary protection – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 36 |
| Cases cited: ADO15 v Minister for Immigration & Anor [2016] FCCA 88 AJW15 v Minister for Immigration [2016] FCA 197 AUE15 v Minister for Immigration [2016] FCA 331 AXJ15 v Minister for Immigration [2016] FCA 109 BLS15 v Minister for Immigration & Anor [2016] FCCA 507 BZAFM v Minister for Immigration [2015] FCAFC 41 Minister for Immigration v WZAPN (2015) 254 CLR 610 SZSSC v Minister for Immigration [2015] FCA 3341 SZTAL v Minister for Immigration [2016] FCAFC 69 SZTCU v Minister for Immigration & Anor [2014] FCCA 1600 SZTEQ v Minister for Immigration [2015] FCAFC 39 SZTIB v Minister for Immigration [2015] FCAFC 40 SZTMD v Minister for Immigration [2015] FCA 150 SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552 WZAPN v Minister for Immigration [2014] FCA 947 |
| Applicant: | SZVYE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2016 |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the second respondent is amended to the Administrative Appeals Tribunal.
The application filed 2 January 2015 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2 of 2015
| SZVYE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 3 December 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. Background facts relating to the applicant and his claims and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 25 July 2016.
Background
The applicant is a 43 year old male from Sri Lanka,[1] who arrived at the Cocos Islands on 12 August 2012 as an unauthorised maritime arrival.[2] On 20 November 2012, the Minister notified the applicant that he had exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) and permitted the applicant to make an application for the visa.[3] On 13 December 2012, the applicant lodged the visa application.[4]
[1] Court Book (CB) 29
[2] CB 101.5
[3] CB 101.6
[4] CB 17 - 80
The applicant claimed to be a married Christian Sinhalese fisherman[5] who commuted every three weeks from his home town of Chilaw to Mullaitivu to work with his father.[6] He claimed that there were disputes between Tamil and Sinhalese fisherman over limited resources. On one occasion, the applicant claimed to have been beaten by a Tamil fisherman. The applicant claimed he received no assistance from the local authorities when he reported the incident.[7]
[5] CB 46, cf 141 [7]
[6] CB 46 [7]
[7] CB 46 – 47 [7] - [11]
The applicant claimed to have a profile in Mullaitivu as someone who “spoke out against the authorities”[8] and that he would be targeted by the Tamil fisherman from Mullaitivu and could not get protection from the authorities.
[8] CB 48 [13]
The applicant claimed that, since arriving in Australia, a group of Tamils from Mullaitivu had come to his home in Chilaw after he left and demanded to see him.[9] He also claimed to fear harm on the basis that he was a failed asylum seeker and had departed Sri Lanka illegally.[10]
[9] CB 106.7
[10] CB 48 [15], 92 – 93
A delegate of the Minister interviewed the applicant on 10 September 2012.[11] On 17 September 2013, the delegate refused to grant the applicant a protection visa.[12]
[11] CB 101.6, 105 -107
[12] CB 96 - 118
On 18 September 2013, the applicant applied to the Tribunal for a review of the delegate’s decision.[13] On 3 December 2014, following a hearing on 24 November 2014, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa.[14]
Tribunal decision
[13] CB 119 -125
[14] CB 140 - 150
The Tribunal accepted that the applicant was a Catholic Sinhalese fisherman who commuted to work with his father and experienced localised clashes with Tamil fishermen over resources. However, the Tribunal did not accept that the authorities did nothing about these incidents.[15]
[15] CB 144 [21]
The Tribunal did not accept that the applicant was truthful when he claimed that a group of Tamils from Mullaitivu had come to his home in Chilaw and demanded to see him. The Tribunal found that there was not “logical or plausible reason” for this action and found that it did not happen.[16]
[16] CB 145 [22]
The Tribunal found that it would be reasonable for the applicant to reside in Chilaw and his home province. The Tribunal also found that the applicant could safely re-access his home province upon return to Sri Lanka. In making this finding, the Tribunal gave weight to the following relevant evidence:[17]
(a)the applicant was able to work as a fisherman in Chilaw without facing harm;
(b)Tamils and Sinhalese lived together peacefully in the applicant’s province;
(c)the applicant gave evidence about the freedom of movement in Sri Lanka; and
(d)the Tribunal did not accept that the applicant or any of his relatives would attend rallies against the government or be imputed with “even a remote link” to the LTTE.
[17] CB 145 [23]
The Tribunal accepted that the applicant may be imputed to be a failed asylum seeker but held, based on the country information, this would not result in the applicant suffering serious or significant harm.[18]
[18] CB 145 [24]
The Tribunal accepted that, on return to Sri Lanka, the applicant may come to the attention of the Sri Lankan authorities as a “former illegal emigrant from Sri Lanka”.[19] The Tribunal accepted that he may be “questioned by police…and possibly charged under the I&E Act” and that the processes the applicant may face could result in the applicant being “in police custody at the airport for up to 24 hours, or for three or four days...” but that he would be granted bail and the conditions in which he would be held would not amount to “serious” harm.[20]
[19] CB 145 [25]
[20] CB 145 – 146 [25]
The Tribunal also found that these processes were the result of the enforcement of laws of general application which were not applied in a discriminatory manner.[21]
[21] CB 146 [26]
The Tribunal did not accept that the applicant would be perceived as having played a role in people smuggling.[22] Nor did it accept the applicant’s claims that he would be “bribed or extorted” on return to Sri Lanka. The Tribunal found that this claim was “bald, vague and unsupported”.[23] The Tribunal also rejected the applicant’s claims about the personal impact of the general human rights situation in Sri Lanka as “vague and speculative”.[24]
[22] CB 146 [26]
[23] CB 146 [27]
[24] CB 146 [28]
For these reasons, the Tribunal was not satisfied that the applicant met the refugee criterion under s.36(2)(a) of the Migration Act.[25]
[25] Tribunal Decision [29]-[30]
On the same bases, the Tribunal was not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm and accordingly found that he failed to satisfy the complementary protection criterion under s.36(2)(aa) of the Migration Act.[26] In considering s.36(2)(aa) the Tribunal also made additional findings that:[27]
(a)there was insufficient evidence that the process of penalising the applicant for illegal departure was intentional or that there was a real risk that that others would inflict harm upon him during that process;
(b)even taking into account the crowed and unsanitary conditions, the period in custody and the payment of a fine would not amount to significant harm; and
(c)it did not accept that the applicant faced a real risk of extra-judicial violence either in or out of custody in Sri Lanka.
[26] CB 147 [31] - [35]
[27] at [34]
The present application
These proceedings began with a judicial review application filed on 2 January 2015. Grounds in the application are reproduced at paragraph 17 of the Minister’s submissions, which I incorporate in this judgment:
1. At [24] the Tribunal erred by failing to consider the applicant’s claims in accordance with the applicant’s particular social group of “failed asylum seekers who departed Sri Lanka illegally”.
2. At [26] the Tribunal erred in failing to consider and apply the correct test for a law of general application.
3. At [18] and [25] the Tribunal erred in asking itself the wrong question that a threat to liberty by “some checking and question, a few hours in remand” is not serious harm.
The applicant continues to rely upon that application. He has not taken up the opportunity afforded him by procedural orders made by a Registrar for an amended application and additional evidence.
I received as evidence the short affidavit filed with the application and the court book filed on 17 March 2015.
Only the Minister prepared written submissions. The applicant did, however, make fairly extensive oral submissions today. In part, those submissions were in the form of questions directed to the Court, which I answered. In part, the applicant’s submissions were directed to the Tribunal’s findings on the risk the applicant might be subject to should he be incarcerated in Sri Lanka on return there. Those submissions went to the possibility of harm, which the Tribunal did not accept amounted to a real risk of serious or significant harm.
The applicant also contested the view that Sri Lanka had achieved peace following the conclusion of the civil war. In the applicant’s view, serious problems remain in the north and east of the country. No submissions went to the merits of the Tribunal decision, which are beyond the scope of this proceeding. The applicant in his closing submissions referred to an argument raised by him for the first time before the Tribunal concerning people visiting his home. The applicant accepted that this incident was referred to by the Tribunal at [12] of its reasons.[28]
[28] CB 142
In my opinion, the Tribunal dealt adequately with that claim as an incident of no particular importance, if it occurred. In other respects, the Tribunal’s adverse credibility conclusions related to matters which had been dealt with before the delegate and about which the applicant was on prior notice. In my opinion, the conclusions reached by the Tribunal in relation to the applicant’s claims of past harm were open to it on the material before it. The Tribunal’s conclusions concerning the risk faced by the applicant as a returnee to Sri Lanka in circumstances where he had left the country illegally are the focus of the applicant’s grounds of review.
At the time the application was filed an arguable case was properly identified in respect of those issues. However, as is pointed out in the Minister’s submissions, the arguments are no longer viable in the light of more recent judicial authority. I explained this to the applicant. I agree with the Minister’s submissions in relation to the grounds advanced.
The applicant’s grounds appear to be based upon the reasoning of North J in WZAPN v Minister for Immigration.[29] That reasoning was held to be incorrect by the High Court in Minister for Immigration v WZAPN[30] (WZAPN) and by the Full Federal Court in SZTEQ v Minister for Immigration;[31] SZTIB v Minister for Immigration;[32] BZAFM v Minister for Immigration.[33]
[29] [2014] FCA 947
[30] (2015) 254 CLR 610
[31] [2015] FCAFC 39
[32] [2015] FCAFC 40
[33] [2015] FCAFC 41
Dealing with each pleaded ground separately:
(a) in relation to the first ground, the applicant made no claim that there is a particular social group of “failed asylum seekers who departed Sri Lanka illegally”.[34] The Tribunal specifically considered the applicant’s claims as a failed asylum seeker and a person who departed Sri Lanka illegally at [24] - [26] and [34];
(b) in relation to the second ground, in the absence of submissions as to what is the “correct test for a law of general application” and if this was not intended to be a reference to WZAPN, this ground becomes unintelligible. The Tribunal made a factual finding at [26] expressly based on the evidence before it. There is no obvious error in that finding; and
(c) the same reasoning in relation to the second Ground applies to the third ground of review.
[34] cf CB 48 [15], 92 -92
The Minister, as a model litigant, also notes this Court’s decision in SZUQZ v Minister for Immigration & Anor.[35] There is no such error in this case.
[35] [2015] FCCA 1552
First, it is not apparent which aspects of the PAM3: Refugee and Humanitarian - Complementary Protection Guidelines (PAM 3 Guidelines) were made mandatorily relevant by reference to any aspect of the Tribunal’s decision.
Secondly, the Tribunal’s express reference to the PAM 3 Guidelines indicates that the Tribunal was aware of its obligations.[36] The Tribunal was not required to slavishly cite the guidelines and an applicant must demonstrate that the Tribunal failed to discharge the obligation of which it claimed it knew and understood.[37]
[36] CB 149 [45]
[37] See SZTCU v Minister for Immigration & Anor [2014] FCCA 1600 at [39]; SZSSC v Minister for Immigration [2015] FCA 3341 at [22]; ADO15 v Minister for Immigration & Anor [2016] FCCA 88 at [52]; cf AJW15 v Minister for Immigration [2016] FCA 197 at [46] noting [21].
Thirdly, the PAM 3 Guidelines describe their purpose as being to assist decision-makers 'on the law relevant to the assessment of whether Australia owes protection obligations to applicants’.[38] Their purpose is to elucidate the law applicable to s.36(2)(aa) determinations. Clause 2 of direction 56 only requires consideration of the guidelines “to the extent that they are relevant to the decision under consideration”. The “relevance” referred to in clause 2 is not objective relevance to be determined as a jurisdictional fact by a court on review.[39] Accordingly, any requirement imposed by clause 2 must be understood as operating only where the Tribunal is of the opinion that the guidelines are relevant.
[38] Guidelines clause 1.
[39] SZTMD v Minister for Immigration [2015] FCA 150 at [20]
Fourthly, the Tribunal expressly took into account the DFAT report as required by the PAM 3 Guidelines[40] and itself identified and considered the effect of prison conditions and the duration of those conditions. This is in clear compliance with clause 3 of direction 56 and the issues raised by the PAM 3 Guidelines. In circumstances where the Tribunal expressly cites information which corresponds to issues in the PAM 3 Guidelines and it specifically states its understanding of its obligations with respect to those guidelines, it is not open to infer that it failed to have regard to those guidelines.[41] The only available inference is that the Tribunal properly recognised, in accordance with the guidelines, that such prison conditions could give rise to protection obligations.
[40] CB 145 [25] and 147 [34]
[41] cf AUE15 v Minister for Immigration [2016] FCA 331; AXJ15 v Minister for Immigration [2016] FCA 109; AJW15 v Minister for Immigration [2016] FCA 197 at [48] – [49]; BLS15 v Minister for Immigration & Anor [2016] FCCA 507 at [19] – [34]
Finally, and in any event, even if this were not the case, the other aspect of the Tribunal’s reasoning was that there was a lack of the requisite intention. That finding is fatal to this this issue (as it renders any error as asserted irrelevant).[42]
[42] cf SZTAL v Minister for Immigration [2016] FCAFC 69; SZTCY v Minister for Immigration [2015] FCCA 85; SZTGMv Minister for Immigration [2015] FCCA 87. Upheld on appeal: SZTAL v Minister for Immigration [2016] FCAFC 69
On my own reading of the Tribunal decision, I am of the view that it is free from jurisdictional error.
I find that the applicant has failed to establish any jurisdictional error in that decision. The decision is therefore a privative clause decision and the application must be dismissed.
On the question of costs, the Minister seeks an order fixed in the amount of $5,800. Scale costs in this instance would be $6825. The applicant indicated he wished to seek advice on the issue of costs but I saw no reason to delay an order. I am satisfied that costs of at least the amount of $5,800 have been properly incurred on behalf of the Minister. I will order that the applicant pay the Minister’s costs fixed in that amount.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 11 August 2016
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