SZVYM v Minister for Immigration

[2017] FCCA 3035

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVYM v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3035

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958, ss.36, 91R, 474

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
WZAPN v Minister for Immigration & Border Protection (2014) 229 FCR 477
SZTEQ v Minister for Immigration & Border Protection (2015) 229 FCR 497
Minister for Immigration & Border Protection v WZAPN (2015) 254 CLR 610

Applicant: SZVYM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 12 of 2015

Judgment of: Judge Cameron

Hearing date: 14 November 2017

Date of Last Submission: 14 November 2017

Delivered at: Sydney

Delivered on: 14 November 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C. Hillary of DLA Piper

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001, the application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 12 of 2015

SZVYM

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 who arrived in Australia as an irregular maritime arrival on 15 July 2012. On 17 December 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Sri Lanka. On 2 August 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The matter is before the Court for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to him.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“Rules”) if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

4. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, the applicant will not have made out an arguable case unless he can demonstrate that it is at least arguable that the Tribunal’s decision is affected by jurisdictional error.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection.  As summarised by the Tribunal, the applicant relevantly made the following claims in his protection visa application:

   …he is a Tamil Christian from North West Province. Due to his lack of education and illiteracy, he worked with his mother selling fish at the market and he did not, and cannot, engage in other work. The applicant claims that the area where he lived was predominately Sinhalese and the Tamils had been targeted and harassed. Often the Sinhalese came to the market and took fish from his stall without payment and if any stall holder complained, they would be beaten. His brother had been stabbed before but did not receive any assistance from the authorities. The applicant claims that due to being harassed, he will be unable to support and sustain himself in the future. He will be targeted due to his ethnicity as a Tamil and he will not receive state protection.  He is unable to relocate.  He will also be targeted as a failed asylum seeker.

2. In written submissions lodged with the Tribunal on 31 March 2014, the applicant claimed that drunken men would often come to his house to verbally harass him and his mother.  He feared that if he returned to Sri Lanka he would be perceived to be a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”) because of his Tamil ethnicity and his application for asylum in Australia (the applicant did not pursue the former claim in his oral evidence before the Tribunal).  At his Tribunal hearing, the applicant further claimed that he was involved in an altercation with a group of men who were still looking for him after he left Sri Lanka.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I adopt:

   16.The RRT found that there was no real chance the applicant would be persecuted for reason of his claims concerning, and arising from, his employment. The RRT did not accept that the applicant had been involved in an altercation with others relating to his involvement in the fish selling business, nor did it accept that the applicant had been beaten or escaped.  The RRT did not accept that the applicant or his mother reported the matter to the police and that no action was taken, nor did it accept that anyone had been looking for the applicant

   17.For reason that the applicant’s mother was no longer involved in the fish selling business, the RRT found that any harassment the applicant claimed to have suffered in the past as a Tamil trader would not occur in the future.

   18.In respect of the applicant’s claim that his ability to subsist would be jeopardised and he would not be able to engage in any other employment upon return to Sri Lanka, the RRT did not accept this and found that the applicant would be able to get employment in the construction industry as his brother did.  The RRT noted that the applicant indicated he had been working in a printing company in Australia and had acquired new skills during his time in Australia which he could utilise upon return to Sri Lanka.

   …

   20.In respect of the applicant’s general claim to fear discrimination as a Tamil, the RRT took into account the applicant’s particular circumstances and found that the applicant did not face a real chance of suffering discrimination which would amount to serious harm.

   21. The RRT considered the applicant’s claims cumulatively at [45] and concluded that the applicant did not face a real chance of serious harm.

   22.In relation to the applicant's claim to fear harm as a failed asylum seeker, the RRT accepted that the applicant departed Sri Lanka illegally and that he would be questioned at the airport in Sri Lanka upon his return. The RRT was not satisfied that the possibility of the applicant being held in prison for a short period of time and in poor conditions was sufficient to amount to serious or significant harm.

   23.The RRT went on to consider the applicant’s claims against the complementary protection criterion and found that the applicant did not satisfy the criterion for grant of the visa in section 36(2)(aa) of the Act.

2. The Tribunal considered the applicant’s claim that he would face discrimination as a Tamil generally (notwithstanding that the applicant did not pursue this claim in oral evidence), having regard to UNHCR guidelines and the applicant’s own particular circumstances.  The Tribunal found that there was no basis at all to suggest, as the applicant’s representatives had claimed in written submissions, that the applicant would be imputed with any political opinion, including links with the LTTE.

3. Having considered the applicant’s claims both singularly and cumulatively, the Tribunal was not satisfied that there were reasonable grounds to believe that there was a real risk the applicant would suffer significant harm if he were removed from Australia to Sri Lanka.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The Reviewer has 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 Reviewer 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. The essence of the applicant’s allegation was that the Tribunal misunderstood s.91R of the Act and failed to apply it correctly. At the time of his Tribunal review, s.91R(1) and (2) provided:

   91R Persecution

   (1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

   (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   (b) the persecution involves serious harm to the person; and

   (c) the persecution involves systematic and discriminatory conduct.

   (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a) a threat to the person’s life or liberty;

   (b) significant physical harassment of the person;

   (c) significant physical ill-treatment of the person;

   (d) significant economic hardship that threatens the person’s capacity to subsist;

   (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

3. It appears that the applicant seeks to rely on the reasons of North J in WZAPN v Minister for Immigration & Border Protection (2014) 229 FCR 477 where his Honour said at 483 [20]:

   Whether there is a threat depends on an assessment of the likelihood of harm happening. But once that threat is established, s 91R(2)(a) operates so that the threat to life or liberty amounts to serious harm irrespective of the nature or extent of the potential harm to life or liberty. Thus, there is no place for an assessment of the frequency or degree of the harm, or the circumstances which attend such harm, save only for a de minimus exclusion. Consequently, once the reviewer found that the applicant was at risk of detention, serious harm was established within the meaning of s 91R(2)(a) irrespective of the significance of the circumstances attending the detention.

4. That reasoning was disapproved by the Full Court of the Federal Court in SZTEQ v Minister for Immigration & Border Protection (2015) 229 FCR 497. At 510 [46] Robertson, Griffiths and Mortimer JJ said:

   In our opinion, on its proper construction, s 91R does not forbid a qualitative assessment of claimed detention or imprisonment with a view to establishing whether or not it rises to the level of “serious harm” so as to constitute persecution, if the detention or imprisonment is for a Convention reason and the other aspects of s 91R are satisfied.

   Their Honours continued at 513 [60]:

   With great respect to the different view expressed in WZAPN at [30], we do not consider that the structure of s 91R(2) supports a construction of that provision to the effect that any threat to liberty constitutes serious harm without reference to the severity of the threat to liberty. As Dixon CJ observed in a frequently cited passage in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397:

   … the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.

   (Emphasis in original)

5. Justice North’s decision was considered by the High Court in Minister for Immigration & Border Protection v WZAPN (2015) 254 CLR 610. The Chief Justice, together with Kiefel, Bell and Keane JJ, expressly approved the reasoning expressed by the Full Court of the Federal Court in SZTEQ at 619 [5]:

   These appeals are not the occasion for a comprehensive consideration of what is encompassed by the phrase “a threat to liberty” in s 91R(2)(a) of the Act. The critical question is whether the likelihood of future episodes of temporary detention constitutes a threat to liberty within s 91R(2)(a) of the Act, irrespective of the circumstances and consequences of that detention for the person seeking refugee status. The text of s 91R of the Act, understood in its context, is determinative of this question. The decision of the Full Court in SZTEQ was correct, and North J’s construction of s 91R(2)(a) in WZAPN cannot be sustained. (Footnote omitted)

6. Their Honours also expressly disapproved of North J’s construction of s.91R(2)(a) in WZAPN at the intermediate appeal stage.  Their Honours went on to say at 634 [70]:

   Section 91R is concerned, as is Art 1A(2) of the Convention, not simply with the violation of rights, but also with the seriousness of the harm suffered by a person as a result of the violation.

7. Those authorities make it clear that the jurisdictional error which the applicant seeks to propound in his amended application does not in fact exist and that no error is disclosed by the Tribunal having considered whether his detention or potential detention as a returned asylum seeker would amount to serious harm or significant harm.  That is to say, the ground alleged in the amended application does not identify an arguable case against the respondents.

8. At the hearing of this application, the applicant also contended that the Tribunal had failed to consider all of the claims which he had made to it.  When asked to identify the claims he said had not been considered by the Tribunal, the applicant referred to the matters which the Tribunal addressed in paras.18 and 19 of its reasons.  The applicant did not identify any other claims made by him to the Tribunal which could be said to have been overlooked.  Consequently, nothing raised in the applicant’s address to the Court could be characterised as manifesting an arguable case of jurisdictional error on the Tribunal’s part. 

Conclusion

1. As the applicant has not demonstrated that he has an arguable case for the relief he seeks, the application will be dismissed. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 20 December 2017