SZVZT v Minister for Immigration

[2015] FCCA 316

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVZT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 316

Catchwords:
MIGRATION – Refugee Review Tribunal – summary dismissal – application dismissed.

Legislation:  
Immigration and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: SZVZT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 119 of 2015

Judgment of: Judge Street

Hearing date: 12 February 2015

Date of Last Submission: 12 February 2015

Delivered at: Sydney

Delivered on: 12 February 2015

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Ms Nanson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 119 of 2015

SZVZT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the applicant is seeking constitutional writ on the following grounds:

   I am the Applicant.

   I have no lawyer to assist/represent me in respect of my court application in this court.

   I lodge this application to protect my appeal rights and immediately to seek advice from a lawyer after a lawyer has been given by this court.

   I have read my RRT decision and I do not agree with my RRT’s decision.

   I will tell the lawyer as to why I disagree with the RRT’s decision soon after this court has given me a lawyer for advice/assistance.

   I prefer to tell this court as to why I disagree with the RRT’s decision after meeting the lawyer, after given by this court.

2. At the commencement of the matter before the Court, it was identified to the applicant that the grounds did not identify any jurisdictional error and that the Court was minded to deal with the matter summarily.  The applicant was invited to identify any jurisdictional error on which he wished to rely.  The applicant stated that the Tribunal records were not provided with certain medical reports and made reference to their lateness in providing those documents.  Neither of those matters identifies any jurisdictional error.

3. I take into account the caution and principles identified by the High Court in Spencer v Commonwealth of Australia (2010) 241 CLR 118:

   24. The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action[46] or on the basis that the action is frivolous or vexatious or an abuse of process[47]. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said[48]:

   "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried".

   More recently, in Batistatos v Roads and Traffic Authority (NSW)[49] Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde[50] which included the following:

   "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways[51], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."

   There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A[52]. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.

   25. Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

   …

   59. In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

   60. Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

4. On 7 January 2015, the Tribunal delivered its reasons for affirming the decision not to grant the applicant a Protection class (XA) visa for which the applicant applied on 8 November 2012.  The Tribunal noted that the applicant simply claims that he was a victim of extortion by a paramilitary group in Sri Lanka and that he was threatened and seriously assaulted for not meeting the group’s demands and that he fears harm from this group and fears harm by the Sri Lankan authorities for his Tamil ethnicity, imputed political opinion and having sought asylum in Australia.

5. The Tribunal noted under the statutory criteria that the relevant issue is whether the applicant had a well‑founded fear of persecution for one or more of the five reasons set out in the Refugees Convention in relation to Sri Lanka and, if not, whether there were substantial grounds for believing that as a necessary and foreseeable consequences of being removed from Australia to Sri Lanka, (which the Tribunal clearly found was the receiving country) whether there is a real risk that the applicant would suffer significant harm. 

6. The Tribunal referred to the entry interview of the applicant and the content of his application for the protection visa and what occurred before the delegate on 9 April 2013.  The Tribunal received both pre‑hearing submissions and conducted a hearing at which the applicant appeared on 16 December 2014 to give evidence and present arguments. 

7. The Tribunal’s decision identified the relevant law and then set out in detail reasons for the findings made. 

8. The Tribunal relevantly found:

   35. The Tribunal is not satisfied that the applicant has a profile that would put him at risk of serious harm for the reason of his imputed political opinion. The Tribunal is not satisfied that he will be perceived to hold anti-government views or pro-LTTE links of a nature that would put him at a risk of serious harm. The Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed for the reason of his race, actual or imputed political opinion or membership of the particular social group of 'young Tamil males' if he returned to Sri Lanka.

9. The applicant at the hearing had put to him the country information and the Tribunal decision relevantly records:

   44. At the hearing, the applicant responded to the country information put to him by stating that he would return to Sri Lanka if his safety is guaranteed by the Australian government. He did not make any other specific comments. The information before the Tribunal does not support the applicant's representative's written submission that even an absence of a prior political profile will not be sufficient to protect the applicant from persecution due to the arbitrariness and authoritarian tendencies of the Sri Lankan government.

   45. It her submission of 9 December 2014, the applicant's representative questioned information provided by DFA T, arguing that DFAT's procedures for gathering evidence as to the treatment of failed asylum seekers upon their return to Sri Lanka are 'non-exhaustive and perfunctory', particularly regarding how failed asylum seekers will be treated upon their return to their home districts. DFAT sources are not necessarily reliable and may lack independence; and DFAT monitoring of returnees ceases after arrival of returnees in Sri Lanka. It is submitted that there is an inappropriate conflation by DFAT of failed asylum seekers with people who have illegally departed from Sri Lanka. It was submitted that DFAT's emphasis upon prosecution for illegal departure ignores the extent to which failed asylum seekers may be subject to unlawful or 'unofficial' punishment as a result of the opinion they will be imputed with because of their bid for asylum in Australia. It was further submitted that DFAT have devoted undue weight to the prospect of prosecutions for illegal departures, without due regard to abuses which may be suffered in custody. The Tribunal does not share the applicant's representative's views in relation to the report and other information cited in this decision by DFAT. The Tribunal considers DFAT reports to be informed, recent and reliable. While DFAT' s sources are not named and listed for a number of reasons, which may include protecting the identity of the sources on the ground, it does not mean that DFAT sources are not reliable, independent and diverse.

   46. On the basis of the evidence before it, the Tribunal is not satisfied that the combination of the applicant's ethnicity and his living overseas would specifically impute him with having links to the LTTE or expose him to a greater level of interest by the TMVP. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reasons of any pro-L TIE or anti-government political opinion that may be imputed to him because he has lived in Australia or because he has sought asylum in Australia. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reason of his membership of the particular social group of 'failed Tamil asylum seekers' or because he is a Tamil or a young Tamil male who left Sri Lanka illegally and who has applied for asylum in Australia. The Tribunal is not satisfied that there is a real chance the applicant will face serious harm as a result of any follow-up by any other authorities or agencies. [emphasis added]

10. The Tribunal turned to the issue of the application of the Immigration and Emigrants Act 1949 (Sri Lanka) in respect of illegal departures and the general application of that law and the absence of its application selectively, discriminatorily or arbitrarily.

11. Materially, the Tribunal found in relation to any period of remand that the applicant’s particular circumstances, the Tribunal was not satisfied that this amounts to serious harm for a Convention reason. The Tribunal was not satisfied that there is a real chance that the applicant will face serious harm for a Convention reason whilst in remand and that the Tribunal was not satisfied there is a real chance the applicant will face serious harm upon his return to Sri Lanka or upon his return to his village because he is a Tamil, a failed asylum seeker or because he left Sri Lanka illegally or for any other Convention reason.

12. The Tribunal continued by saying it is not satisfied, either individually or cumulatively, that there is a real chance that the applicant would face serious harm amounting to persecution for a Convention reason because of his Tamil race/ethnicity, actual or imputed political opinion or his membership of a particular social group if he returned to Sri Lanka.  Materially, the Tribunal then found that it was not satisfied the applicant had a well‑founded fear of persecution for a Convention reason should he return to Sri Lanka now or in the foreseeable future.

13. The Tribunal also considered the complementary protection and relevantly found that the Tribunal was not satisfied that the applicant would be exposed to significant harm by virtue of the fine that might be imposed on him upon being returned.  The Tribunal was not satisfied there was any real risk the applicant would be subjected to torture or any further mistreatment amounting to significant harm upon his arrival, during or as a consequence of questioning at the airport or during any period which he might spend in prison or detention or remand upon his return. 

14. The Tribunal was not satisfied that there are any substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is any real risk he will suffer significant harm during any period which he may spend in prison or on remand.  The Tribunal continued:

    56. For the reasons provided above, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.

    57. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    58. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    59. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

    60. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

15. The findings by the Tribunal were clearly open on the material before the Tribunal, and reading the Tribunal’s decision as a whole, there is no apparent jurisdictional error either in the findings or in the conduct of the review.  On the material before the Court I am clearly satisfied there is no arguable jurisdictional error. There is clearly an evident and intelligible foundation for the findings made. The disagreement of the applicant with the decision does not amount to a jurisdictional error. In all these circumstances, I am clearly satisfied that this is a case where it is appropriate to exercise the Court’s power to summarily dismiss the application.  Accordingly, the application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  KM

Date:  16 February 2015