SZWAX v Minister for Immigration

[2016] FCCA 2156

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWAX v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2156

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA

Cases cited:

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant: SZWAX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 215 of 2015

Judgment of: Judge Barnes

Hearing date: 8 August 2016

Delivered at: Sydney

Delivered on: 8 August 2016

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 215 of 2015

SZWAX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal dated 7 January 2015.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, a citizen of Sri Lanka, arrived in Australia in mid-2012 as an unauthorised maritime arrival.  The Minister exercised his discretion to permit the Applicant to make an application for a protection visa, which he made on 28 November 2012.  The application was refused and he sought review by the Tribunal. 

3. The Applicant’s claims were set out in a statement accompanying his protection visa application.  His adviser made submissions to the Department and to the Tribunal.

4. The Applicant attended a Tribunal hearing.  The only evidence before the court as to what occurred in that hearing is the Tribunal’s account in its reasons for decision. 

5. The Applicant claimed to have worked overseas in various countries between 1996 and 2012.  He claimed that he had been involved in a protest against price increases in Chilaw in Sri Lanka in late March 2012 and that he had not gone home after the protest because he feared the CID would arrest him.

6. He initially claimed that his wife told him that the next day the CID had been at their home looking for him and that he stayed at his stepmother’s house until he left Sri Lanka.  Subsequently he claimed in his interview with the delegate that the CID went to his house after he left Sri Lanka, not shortly after the protest.  The delegate had regard to this inconsistency.

7. The Tribunal recorded that at the Tribunal hearing the Applicant said that he left Sri Lanka because of economic reasons, that he needed to work to support his family and that he had previously tried to go to the UK to work.  He also claimed to fear returning to Sri Lanka because he may be put in jail for having left the country illegally and because the CID may arrest him for having protested.  He claimed that he would be unable to pay any fine imposed for reason of his illegal departure and that accordingly he would face imprisonment for up to five years.

8. The Applicant’s representative submitted that the economic reasons relied on by the Applicant indicated that he would suffer serious harm as a result of being unable to support his family for reasons of his ethnicity as a Tamil.  This claim was put on the basis that Tamils suffered systematic discrimination in employment as well as encroachment of the armed forces into local employment.

9. The Tribunal accepted that the Applicant left Sri Lanka for economic reasons.  It had regard to the Applicant’s employment history and to country information about the economic situation in Sri Lanka.  It noted that while the Applicant claimed to have struggled to support his family, he had had a variety of jobs and was able to raise sufficient money to pay smugglers to bring him to Australia.  It found that he had demonstrated his ability to be adaptable in the employment market and to have found employment in Sri Lanka and foreign countries.  The Tribunal gave weight to DFAT’s assessment that there were no Sri Lankan laws or policies discriminating on the basis of ethnicity in relation to access to employment.  It did not accept that the Applicant had been prevented from working to support himself for any Convention-related reason in the past or that this would be the case if he returned to Sri Lanka in the reasonably foreseeable future.

10. The Tribunal acknowledged that the Applicant claimed to have attended a protest in Chilaw in late March 2012, but was not satisfied there had been any repercussions for him in having done so.  It found that he had given inconsistent information in his written claims and at interview about when the CID allegedly went to look for him.  The Tribunal regarded this as a significant inconsistency, particularly as the Applicant had initially said he left Sri Lanka because he was in hiding after the CID had been to his house looking for him.  The Tribunal was of the view that the CID had never come looking for the Applicant and that he was never in hiding and that these claims had been fabricated.

11. The Tribunal considered the claim that the Applicant was generally at risk of serious harm for reason of being a Tamil.  It had regard to country information, including as to past risks of persecution of Tamils perceived to support the LTTE, as well as about the present situation in Sri Lanka.  It found that the Applicant did not fall within any of the risk profiles identified by the UNHCR and that there was no basis in his individual circumstances to find that, as an ordinary Tamil, he faced a real chance of persecution.

12. The Tribunal also addressed the Applicant’s claims to fear harm as a failed asylum seeker returning to Sri Lanka.  It had regard to country information on the basis of which it accepted that the Applicant would most likely be questioned on return at the airport and that he may be detained for up to a few days.  It also accepted that he would likely have to pay a fine, but found that these procedures were part of a law of general application relating to illegal departures from Sri Lanka.  It accepted information from DFAT that all Sri Lankans, regardless of ethnicity, were treated according to standard procedures in this respect. 

13. The Tribunal noted that the Applicant had exited and re-entered Sri Lanka on a number of occasions and had confirmed that he had never had problems doing so.  It found nothing to suggest that the Applicant was of adverse interest or had any kind of profile as connected with the LTTE.  The Tribunal concluded that as an ordinary Tamil returning to Sri Lanka after departing illegally the Applicant would be treated according to standard procedures.  It did not accept that he would be singled out for adverse treatment as he had no profile that would warrant such attention.  The Tribunal did not accept that the treatment of returnees in accordance with the standard procedures amounted to serious harm.

14. The Tribunal also considered the adviser’s submission that the Applicant would be unable to pay any fine imposed on him, as he was “subject to extreme poverty” and that he therefore would be imprisoned for up to five years.  The Tribunal did not accept that the Applicant was “subject to extreme poverty”, having regard to his employment history, his employment in Australia and his ability to fund travel to Australia and elsewhere in the past.  It found that this claim was purely speculative.

15. For these reasons, the Tribunal found that the Applicant did not meet the Refugees Convention criteria. 

16. The Tribunal also considered the complementary protection criterion, in particular the adviser’s submission that the Applicant met that criterion because he would be denied the ability to subsist and that this amounted to cruel or inhumane treatment or punishment or being subjected to degrading treatment or punishment. 

17. However, for the reasons already given, the Tribunal did not accept that the Applicant would be denied the ability to subsist.  It also considered that any difficulties he may face in finding employment would be due to deficiencies in the employment market and would not be intentionally inflicted on him as required under the definitions of the relevant kinds of significant harm.  The Tribunal reiterated that, for the reasons given, it had found that as a returnee who departed illegally, the Applicant would be treated according to standard procedures.  It did not accept that being questioned, detained for up to a few days and fined amounted to significant harm within the Migration Act 1958 (Cth) (the Act).

18. The Tribunal concluded that, even considered cumulatively, it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to Sri Lanka, there was a real risk he would suffer significant harm.  The Tribunal concluded that the Applicant did not meet the complementary protection criterion.  It affirmed the delegate’s decision.

19. The Applicant sought review by Application filed in this court on 29 January 2015.  He now relies on an Amended Application filed on 10 April 2015.  He did not file written submissions.  He was given the opportunity today to make oral submissions.  He had nothing to say in relation to the grounds in his Amended Application, but claimed that if he returned to his country he would face problems from the police and the CID.  Insofar as he reiterated the claims he made to the Department and the Tribunal, he sought impermissible merits review.

20. In the Amended Application the Applicant contended generally under the heading “Grounds” that there were “major issues” which the Tribunal did not consider.  A number of paragraphs are described as “particulars”, each of which I have considered. 

21. First, it was contended that the Tribunal had failed to consider cumulatively the risk of harm for the Applicant as a Tamil who attended a protest in Chilaw and a failed asylum seeker who departed Sri Lanka illegally and the consequences of his inability to pay the fine that would be imposed on him. 

22. The Tribunal understood that the Applicant made claims on each of these bases.  In the context of considering the Refugees Convention criterion, it addressed each claim.  In relation to the claim about participating in the protest in Chilaw, the Tribunal proceeded on the basis that the Applicant had participated in a protest about prices, but, importantly, found that it was not satisfied that there were any repercussions for him in having done so and that his claims about the CID coming looking for him and being in hiding had been fabricated in an attempt to meet the Refugees Convention criterion.  The Applicant had relied on such consequential claims in support of his claim to fear future harm.  Having rejected the Applicant’s claims about consequences of involvement in the protest, there was no obligation on the Tribunal to consider such claims further together with other claims.

23. The Tribunal also understood that the Applicant was a Tamil and considered whether he was genuinely at risk of serious harm for reason of being a Tamil.  In that context it also considered the Applicant’s individual circumstances in finding that there was no basis in his individual circumstances to find that as an ordinary Tamil he faced a real chance of persecution.

24. The Tribunal also considered the Applicant’s claims as a failed asylum seeker who left Sri Lanka illegally.  Importantly, in that context it also had regard to his ethnicity as a Tamil, in accepting that all Sri Lankans, regardless of ethnicity, were treated according to standard procedures.  In addition, the Tribunal considered the Applicant’s individual circumstances in finding that there was nothing to suggest that he was of adverse interest or had any kind of profile as being connected with the LTTE, but rather was an ordinary Tamil returning after departing illegally who would be treated according to standard procedures. 

25. As to the Applicant’s claim that he would be unable to pay a fine for illegal departure, the Tribunal specifically considered, but rejected, this claim on the basis that it did not accept that he was the subject of extreme poverty.  It is clear, reading the Tribunal’s reasons for decision as a whole, that the Tribunal acknowledged that the Applicant was likely to be subjected to a fine, but found that this did not amount to persecution for a Convention reason.

26. Moreover, in considering the complementary protection claims, the Tribunal considered not only the Applicant’s claims about being unable to subsist (which it rejected) but also found there would be no intentional infliction of harm if he had any difficulties in finding employment.  It also referred back to its reasons in relation to the Applicant’s claims to fear harm as a failed asylum seeker who departed illegally in not accepting that being questioned, detained for up to a few days and fined could amount to significant harm as defined by the Act.  Furthermore, the Tribunal went on to consider cumulatively the Applicant’s claims as a basis for meeting the complementary protection criterion.  It was not satisfied that he met that criterion.

27. I am satisfied that the Tribunal considered the Applicant’s claim cumulatively insofar as it was necessary to do so.  Having regard to the manner in which the Tribunal considered all of the Applicant’s claims (including, in particular, the relevance of his ethnicity to the failed asylum seeker and illegal departee claims) in relation to the Refugees Convention criterion and the cumulative assessment in relation to the complementary protection criterion, no jurisdictional error is established on the basis contended for in the first particular to the “ground” relied on by the Applicant. 

28. The next issue raised is that the Tribunal failed to comply with ss.424A and 424AA of the Migration Act. It is also asserted that the Tribunal failed to afford the Applicant procedural fairness. The “particulars” to this “ground” are that the Tribunal did not raise or put to the Applicant in writing “parts of the adverse decision” for him to comment in writing.  It was also contended that the Tribunal did not give the Applicant an opportunity to respond to negative information which it intended to use to refuse the application. 

29. Considering first the claims in terms of ss.424A and 424AA of the Act, insofar as it is contended that the Tribunal erred in failing to raise or put to the Applicant in writing parts of the adverse decision for the Applicant to comment on in writing, the Tribunal is under no obligation under s.424A of the Act to put its provisional reasoning to an applicant for comment (see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 per French CJ and Kiefel J at [9]). Further, it is well established that the meaning of information in s.424A(1) is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [17] – [18]).

30. Insofar as there is reliance on s.424AA of the Act, there is no evidence before the court to support any contention that the Tribunal attempted to, but failed to comply with the procedures in s.424AA in the course of the Tribunal hearing. The more fundamental problem is that the Applicant has not identified any information to which the s.424A would apply (so that the procedure in s.424AA could be utilised by the Tribunal as an alternative to putting information to the Applicant in writing under s.424A of the Act). I note that the country information cited by the Tribunal would be within the exception to s.424A in s.424A(3)(a) of the Act.

31. The more general contention that the Tribunal did not give the Applicant an opportunity to respond to negative information does not identify any particular information. As indicated, country information (or information that was not specifically about the Applicant or was given by him for the purposes of the application for review) would in any event be within the exceptions in s.424A(3) of the Act.

32. If it was intended to be asserted that the Tribunal had failed to raise dispositive issues with the Applicant in the course of the hearing, there is no evidentiary basis for such a contention (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63). No failure to comply with ss.425 or 424A of the Act is made out. Nor is there anything in the Tribunal reasons for decision to raise concerns in that respect.

33. It was also contended that the Tribunal had “not considered whether the fact of possible placement of [the Applicant] in the jail for [his] illegal departure by the Sri Lankan authorities would be intentionally inflicted in circumstances where those authorities knew of the existence of condition of the jail” and that the Tribunal had erred by failing to apply the correct test in this respect.  If the Applicant’s contention in this respect relates not to the period of detention on remand before being brought before a magistrate, but rather to the Applicant’s claims that he would be unable to pay a fine and hence would face imprisonment for five years for illegal departure, the Tribunal did not accept his claim that he would be unable to pay a fine and also found that the likely harm to which he would be subjected would be a fine rather than the lengthy imprisonment potentially available in those circumstances.

34. The Tribunal accepted that the Applicant’s treatment would be according to standard procedures.  It accepted that he would most likely be questioned on return and may be detained for up to a few days.  In the context of considering the Refugees Convention criterion it had regard to the fact that these procedures were part of a law of general application relating to illegal departees and accepted that all Sri Lankans, regardless of ethnicity were to be treated according to such standard procedures. 

35. The Tribunal was also not satisfied that being questioned, detained for up to a few days and fined could amount to significant harm as defined by the Act.  It made that finding in the context of addressing the complementary protection criterion.  The Tribunal acknowledged the existence of the requirement of intention.  However in light of the Tribunal’s findings, it was not necessary for it to consider whether harm of the nature in question would be intentionally inflicted.  In any event, as the First Respondent submitted, insofar as in finding that the treatment of the Applicant on return would be according to standard procedures the Tribunal may be said to have considered or proceeded on the basis that there would be no actual subjective intention on the part of the authorities to inflict harm on the Applicant, it was entitled to proceed on that basis (see in particular SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69).

36. Finally, it was contended that the Tribunal had denied the Applicant procedural fairness in concluding that his detention on arrival in Sri Lanka was pursuant to a law of general application. There is nothing in the material before the court to indicate that the Tribunal erred in reaching the view that the Sri Lankan Immigration and Emigration Act was a law of general application. The Tribunal’s finding in this respect was based on DFAT country information cited in its reasons for decision. As indicated, this was not information that had to be put to the Applicant pursuant to s.424A of the Act. Moreover insofar as this was a dispositive issue on the review in the sense considered by the High Court in SZBEL, the Applicant was on notice by virtue of the reasons of the delegate that the Sri Lankan immigration laws may be found to apply to all persons returning to Sri Lanka, regardless of ethnicity.

1. The Applicant’s claim that the Tribunal in some way denied him procedural fairness in concluding that his detention was pursuant to a law of general application is not made out. 

2. As none of the grounds relied on by the Applicant in the Amended Application are made out, the application should be dismissed. 

3. The Applicant has been unsuccessful.  The Minister seeks costs.  The Applicant told the court that he was unable to pay costs and that he was unemployed.  However I am not satisfied that the Applicant’s lack of funds is a reason to depart from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.

4. The amount sought is reasonable and appropriate having regard to the nature of this and other similar matters.  It is also appropriate to make an order changing the name of the Second Respondent.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 23 August 2016