SZWAU v Minister for Immigration
[2015] FCCA 199
•29 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWAU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 199 |
| Catchwords: MIGRATION – Refugee Review Tribunal – whether the correct test under s.91R was applied – whether the Tribunal failed to consider an integer of the applicant’s claim – application dismissed. |
| Legislation: Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Immigration and Emigration Act of 1948 (Sri Lanka) Migration Act 1958 |
| BZABK v Minister for Immigration [2012] FCA 774 MZAPO v The Minister [2015] FCCA 96 Plaintiff S 157/2002 v Commonwealth (2003) 211 CLR 476 SZSSA v Minister for Immigration and Border Protection [2014] FCA 1284 SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | SZWAU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 209 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 29 January 2015 |
| Date of Last Submission: | 29 January 2015 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr S. Prince |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondent: | Ms L. Buchanan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application for leave be refused
The proceedings are dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 209 of 2015
| SZWAU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of the conferral through s.77 of the Constitution of the original jurisdiction in relation to migration decisions as the High Court of Australia has under s.75(v) of the Constitution. In this case, the Tribunal delivered a decision on 20 August 2014. An application for extension of time was required under s.477 of the Act as these proceedings commenced on 28 January 2015 in circumstances where a notice of intention to remove from Australia had been issued in respect of the applicant to take effect today on 29 January 2015.
The Court has heard the injunction application and the leave application concurrently. The grounds advanced of alleged jurisdictional error which are as follows.
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.
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].
Counsel for the applicant, Mr Prince, identified a further ground to the effect that there was a jurisdictional error by the Tribunal by reason of the failure to apply a three-stage analysis expressly in respect of the character of the general law as identified in para.51 of the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947.
In this case, the Tribunal in its reasons identified the claims of the applicant and proceeded to make findings involving the applicant’s credibility and in particular its credibility when discussing his departure from Sri Lanka and his credibility in discussing claims involving his ownership of a farm and machinery and his credibility in discussing a claim as to an angry exchange with the army personnel.
The Tribunal made the following findings at paras.52 and 53:
52. I find that the Certificate indicates that the applicant was not of any interest to the Sri Lankan authorities in his area when the Certificate was issued in March 2012.
53. I did not find the applicant to be a credible witness.
The Tribunal then turned to the issue as follows:
Is there a real chance that the applicant would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future for reason of race as a Tamil and is his fear of persecution well-founded?
The Tribunal made findings at para.64 and 65
64. I do not accept that simply being a Tamil or a single Tamil is sufficient to ground a claim for protection on the grounds of the applicant’s imputed political opinion.
65. I find, on the evidence before me in this case, that there is not a real chance that the applicant will be persecuted not or in the reasonably foreseeable future for reason of his race as a Tamil or his imputed political opinion, as a Tamil, or as a single male Tamil, and that his fear of persecution in Sri Lanka is not well-founded.
Relevantly, in para.91, the Tribunal made findings of credit:
91. I have found above (paragraphs 43 to 46) that the applicant was not credible when considering the credibility of the alte claim by the applicant that he faced a real chance of serious harm from the Army because he had said in a confrontation that if the LTTE was still in control the Army could not behave as it did.
In para.93 the Tribunal said:
93. On the basis of the evidence before, me including the available country information, I find there is not a real chance that the applicant would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future for reason of real or imputed political opinion as a supporter or sympathiser of the LTTE, and that his fear of persecution is not well founded
The Tribunal then directed itself to the question of is there a real chance the applicant would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future for reason of his membership of the particular social group – wealthy landowning Tamils or wealthy Tamils or any similar foundation – and is his fear of persecution well founded.
The Tribunal made findings in paras.102-114 as follows:
102. On the basis of the evidence before me, and given my findings about the applicant’s overall credibility, I am not satisfied that the applicant would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future for reason of his membership of the particular social ground ‘wealthy landowning Tamils’ or ‘wealthy Tamils’ or any similar formulation and that his fear of persecution is well founded.
…
114. It was submitted further: “It is likely that (the applicant) will be detained in reportedly inhumane conditions by Sri Lankan authorities on arrival in Sri Lanka until such time as the authorities are satisfied as to his role, or lack of role, is assisting illegal departure from Sri Lanka, and very possibly until they can locate his family and/or transfer him to the authorities in his province. As long as he remains detained, he faces a real chance, or real risk, of being physically and mentally, abused.”
The applicant asserted that he would be detained in reportedly inhumane conditions in Sri Lanka on arrival in Sri Lanka until the time the authorities were satisfied as to his role or lack of role in assisting in illegal departure from Sri Lanka and very possibly until they can locate his family and/or transfer him to the authorities in his province. The applicant alleged that as long as he remains detained, he faces a real chance or a real risk of being physically or mentally abused.
The Tribunal continued in para. 115:
115. At the hearing I asked why the applicant had said that the Sri Lankan authorities would be angry with him because he had left the country and gone back. The applicant said that he had left illegally and that added to his other problems. He said when he went back to his village he would be abducted and killed.
The Tribunal put to the applicant what the country information was in paras. 119 and 121. The Tribunal made a finding in para. 123 that the applicant does not have a profile of support of the LTTE that would make him a person of interest to the Sri Lankan authorities.
Materially, the Tribunal then turned to the question of whether there was a general law which was appropriate and adapted to a legitimate object for the benefit of the people of the state in the following way:
124. I accept that the applicant left Sri Lanka illegally. I accept that under Sri Lankan law people who depart from any place other than an approved port of departure (such as an airport or seaport) and/or depart without valid travel documents can be charge with an offe3nce under the Immigration and Emigration Act 1048 (I&E Act). Section 45(1)(a) of the I&E Act lists the relevant offences. Section 45 A to G of the I&E Act deals with penalties for offences under the Act. For offences committed under the I&E Act, a prison sentence from 1 to 5 years and a fine of 50,000 LKR to 200,000 LKR may be applicable.
125. I accept that the applicant faces punishment for breaking Sri Lankan law. This is a law of general application. I do not accept that this law is one that is discriminatory or that it is selectively enforced. I accept the published information that the applicant, if he were to be returned to Sri Lanka as a failed asylum seeker, would be questioned on arrival. I also accept that the questioning might include being asked about whether he had any links with, or training from, the LTTE. I accept the country information about the accuracy of Sri Lankan government records. I do not accept that the applicant has any profile such as to bring him to adverse attention of the authorities. I accept that the authorities may well seek to obtain information about his trip to Australia and about his travelling companions and the grounds for any asylum claim he made here. I do not accept that being asked for this information amounts to persecution. I note the recent information that some involuntary returnees have been remanded in custody after being charged under this law. I do not accept that it follows that a returnee would be harmed automatically because they are on remand. (emphasis added)
The Tribunal went to make a finding identified in para.130, and in para.135 as follows:
130. I find, on the evidence before me, that there is not a real chance that the applicant would suffer serious harm in Sri Lanka now or in the reasonably foreseeable future for reason of his membership of the particular social groups ‘returned failed asylum seekers’ or ‘returned Tamil failed asylum seekers’ or ‘failed Tamil asylum seekers returned to Sri Lanka’ or any similar formulation.
…
135. … I have found that, even when the claims are considered cumulatively, there is not a real chance that the applicant would be persecuted for a convention reason now or in the foreseeable future and that his fear of persecution in Sri Lanka is not well-founded.
The Tribunal in para. 136 continued:
136. I have also found the applicant not to be credible when discussing his claims.
The Tribunal in para.142 made a finding that there are no substantial grounds for believing that there is a real risk that the applicant will suffer significant harm because he’s a Tamil, because of any perceived link he had with the LTTE or because he is a Tamil from the east of the country.
The Tribunal continued in para.144:
144. I find on the basis of the evidence before me, that there are no substantial grounds for believing that there is a real risk the applicant will suffer significant harm because he is perceived to be a wealthy Tamil.
The Tribunal returned to the question of possible detention in para.146 and addressed the applicant’s alleged fear in that regard in paras. 147-149.
In para.150 the Tribunal said:
150. I accept the applicant faces punishment for breaking Sri Lankan law. That is a law of general application. I do not accept that this law is one that is discriminatory or that is selectively enforced. I accept the published information that the applicant, if he were to be returned to Sri Lanka as a failed asylum seeker would be questioned on arrival. I also accept that the questioning might include being asked about whether he had any links with, or training from, the LTTE. I accept the country information about the accuracy of Sri Lanka’s government records. I do not accept that the applicant has any profile such as to bring him to the adverse attention of the authorities. I accept the authorities may well seek to obtain information about his trip to Australia and about his travelling companions and the grounds for any asylum claim he has made here. I do not accept that being asked for this information amounts to persecution. I note the recent information that some involuntary returnees have been remanded in custody after being charged under this law. I do not accept that it follows that a returnee will be harmed automatically because they are on remand. ( emphasis added)
The Tribunal in paras.154-155 said as follows:
154. I find there are not substantial grounds for believing that the applicant is at real risk of harm because he is returning to Sri Lanka in general and Batticaloa in particular as a ‘returned failed asylum seekers’ or returned Tamil failed asylum seekers’ or ‘failed Tamil asylum seekers returned to Sri Lanka’ or any similar formulation.
155. I have also considered the applicants claims cumulatively. I am satisfied, on the basis of the evidence before me, that there are not 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 the applicant will suffer significant harm.
The Tribunal concluded that the applicant was not a person in respect of whom Australia has an obligation under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), and that the applicant does not satisfy the criteria under s.36(2)(a), and the Tribunal turned to consideration of 36(2)(aa) as an alternative.
In para. 156 the Tribunal said:
156. …the Tribunal is not satisfied the applicant is a person in respect of whom Australia has a protection obligation under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s. 36(2)(a).
The Tribunal’s reasons must be read as a whole and without an eye to error. In my opinion, there is a material difference between the circumstances of this case and the finding of error made in the WZAPN decision as that involved circumstances where the Tribunal had found the risk of arbitrary detention, and the Court made findings that the Tribunal had engaged in a qualitative assessment error. In my opinion, in this case, the Tribunal properly addressed the question of the character of the threat to liberty of the applicant within the meaning of s.91R, and did not make an error of the kind identified in paras. 30 and 45 of WZAPN identified in the first ground.
Nor, in my opinion, is this a case where there was a failure, reading the decision as a whole, to address whether the law was one which was appropriate and adapted to a legitimate object for the benefit of the people of the State or inhumanely applied by reason of the focus on whether or not it was applied selectively, whether or not it was arbitrary, and the findings made that there was a law of general application and the findings made in relation to the punishment. Further the court in WZAPN applied a need for a three-stage process because of the finding of arbitrary detention. In those circumstances, in my opinion, there is no error of the second kind, as sought to be advanced by the applicant in this case in para 51 of WZAPN.
Further, the applicant faces the difficulty in the present case that the criteria of s.91R are cumulative. There are adverse findings in relation to the other criteria under s.91R so that even if there was an error of the kind identified either in respect of the qualitative assessment identified in WZAPN or in respect of the three-stage analysis of the general law, it is not one which would have any consequence as the applicant has not challenged and could not overcome the other findings of fact adverse to the applicant under s.91R. That is a further reason for distinguishing the decision of WZAPN on each of the grounds of alleged error advanced.
Further, in my opinion, the construction adopted by WZAPN appears to support the proposition that any detention is a threat to liberty within the meaning of s.91R(2)(a). That is a construction that treats the meaning of threat to liberty as if it was the same as right to liberty, and, in my opinion, both in meaning and content, the concepts are different. To treat s.91R(2)(a) as if a threat to liberty arose in circumstances of detention pursuant to a valid law which is appropriate and adapted to a legitimate object for the benefit of the people of the State would, in essence, be treating the right to liberty as if it were an absolute right.
For the reasons given by this Court earlier in MZAPO v The Minister [2015] FCCA 96, it is a fundamental misconception to treat human rights as if they were above the rule of law. The Australian Constitution is based on the supremacy of the rule of law, and when one comes to construing the Migration Act, the High Court in Plaintiff S 157/2002 v Commonwealth (2003) 211 CLR 476 at para.103 said as follows:
103. Finally, the issues decided in these proceedings are not merely issues of a technical kind involving the interpretation of the contested provisions of the Act. The Act must be read in the context of the operation of s 75 of the Constitution. That section, and specifically s 75(v), introduces into the Constitution of the Commonwealth an entrenched minimum provision of judicial review. There was no precise equivalent to s 75(v) in either of the Constitutions of the United States of America or Canada. The provision of the constitutional writs and the conferral upon this Court of an irremovable jurisdiction to issue them to an officer of the Commonwealth constitutes a textual reinforcement for what Dixon J said about the significance of the rule of law for the Constitution in Australian Communist Party v The Commonwealth. In that case, his Honour stated that the Constitution:
"is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption." (emphasis added)
That decision, in my opinion, reinforces the approach that one would not readily construe a statute as if it was elevating human rights above the rule of law.
In my opinion, a valid law that is appropriate and adapted to a legitimate object, which is in essence what has been found by the Tribunal in this case in respect of the potential detention that may flow from the Immigration and Emigration Act of 1948 of the applicant and which is appropriate and adapted to a legitimate object for the benefit of the people of that State, would not be something that constitutes a threat to liberty within s.91R(2)(a). Nor did the Tribunal find that general law was applied inhumanely.
Mr Prince put that this Court was bound by the decision of WZAPN and that this Court was wrong in the decision of MZAPO and that the Tribunal’s reasons failed to properly consider the second ground and could not be read as if that test had been properly considered. For the reasons I have given, I am not persuaded that there is a construction principle identified in WZAPN that is binding in relation to s.91R(2)(a) in the present case. For the reasons I have given, it can be distinguished on both grounds of alleged error.
Further, to the extent that there is a construction principle identified that equates the threat to liberty as if it were a right to liberty, that construction principle, in my opinion, is contrary to the principle entrenched in the Australian Constitution, as to the supremacy of the rule of law. The constructive principle that any detention pursuant to a general law is a threat to liberty would be purporting to elevate, in my opinion, a human right above the rule of law. In my opinion that would be adopting a construction principle that would is inconsistent with what was said by the High Court of Australia in Plaintiff S 157/2002 v Commonwealth referred to above, which is binding on this Court.
Mr Prince said that there was a reasonably arguable case and that the decision raised by WZAPN is the subject of a special leave application in February and is also the subject of a Full Court sitting to take place in the Federal Court of Australia in another case seeking to agitate the issues raised by that decision.
The decision in WZAPN has been distinguished in the way in which I have identified in terms of the cumulative factors by Rares J of the Federal Court of Australia in SZSSA v Minister for Immigration and Border Protection [2014] FCA 1284. In my opinion, the ground of distinction that Rares J adopted is the same as I have identified in terms of the cumulative grounds and the adverse finding under s.91R by the Tribunal. In this case those cumulative grounds mean that the alleged errors would be of no moment.
For these reasons, there is in my opinion no prima facie case referable to the alleged jurisdictional error, to support any interim injunctive relief. Further, for the reasons I have given, there is not, in my opinion, any jurisdictional error made by the Tribunal of the kind identified by the applicant. Because there is no jurisdictional error, I am not satisfied that there are proper grounds, in terms of a prima facie case or balance of convenience to grant any injunctive relief. For the reasons I have given above, it is appropriate to dismiss the application for leave to appeal.
There is no need to make any further order, according to the decision of Foster J in BZABK v Minister for Immigration [2012] FCA 774, in relation to the balance of the application, because once leave is rejected, the proceedings are no longer competent. However, given the non-constitutional injunctive relief sought against the first respondent, the separate consideration of injunctive relief that I have taken into account as identified in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 and the form by which applications are made, to be crystal clear, I propose to make an order dismissing the proceedings as a consequence of the order that I have made refusing leave.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate: KM
Date: 3 February 2015
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