SZWBB v Minister for Immigration

[2016] FCCA 441

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 441

Catchwords:
MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.425

ACC15 v Minister for Immigration [2016] FCA 97
Minister for Immigration v SZTQS [2015] FCA 1069
SZTAP v Minister for Immigration [2015] FCAFC 175

Applicant: SZWBB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 241 of 2015

Judgment of: Judge Driver

Hearing date: 2 March 2016

Delivered at: Sydney

Delivered on: 2 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Pinder of Minter Ellison

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal.

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

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 241 of 2015

SZWBB

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 to a review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 9 January 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Sri Lanka.  He had made claims of persecution on the basis of his Tamil race or ethnicity, an imputed political opinion of support for the Liberation Tigers of Tamil Eelam (LTTE) and his membership of a particular social group of failed asylum seekers returning to Sri Lanka. 

2. The applicant’s claims recited his past.  He comes from the northern province of Sri Lanka and is a fisherman.  He told me today that he is illiterate.  In 2007, the applicant, while fishing, was forced to land in territory controlled by the LTTE.  He was forced to undergo training with them and when he eventually escaped he was questioned by the Sri Lankan authorities.  He experienced some physical maltreatment while being questioned.  The applicant had left Sri Lanka for some time, working in Saudi Arabia.  When he returned in 2010, the problems had, in his terms, settled down.  However, he claimed to have experienced further problems arising out of the authorities’ wish to speak to a relative who they believed had been involved with the Tamil Tigers. 

3. The applicant expanded upon his claims at an interview with the Minister’s delegate.  The delegate, however, refused to grant him a protection visa and he sought review before the Tribunal.  The applicant was represented before the Tribunal and his representative made extensive submissions.  The applicant attended a hearing before the Tribunal on 26 November 2014.  His claims were explored at length at that hearing.  The applicant’s advisor also made submissions.

4. The Tribunal accepted that the applicant had experienced harm in 2007 as a result of straying into Tamil Tiger territory.  However, the Tribunal did not accept that the applicant would be harmed now by reason of his Tamil race or ethnicity or because of any imputed political opinion.  In relation to his particular social group claim, the Tribunal did not accept that the applicant would experience serious or significant harm by reason of his membership of the particular social group of failed asylum seekers returning to Sri Lanka. 

5. The Tribunal accepted that the applicant had breached the Sri Lankan Immigrants and Emigrants Act by leaving the country unlawfully.  The Tribunal accepted that he would probably be detained at the airport and questioned and held in detention for a short time pending a bail hearing.  The Tribunal was of the view that the period of detention would be brief and ultimately the applicant would only be subject to a relatively modest fine.  Accordingly, the Tribunal affirmed the decision under review.

The present proceedings

1. These proceedings began with a show cause application filed on 2 February 2015.  There are two grounds in the application:

   1.      RRT decision is unsupported by any evidence.

   2.      RRT did not fully deal with my problems.

2. The applicant has not taken up the opportunity afforded him in orders made by a registrar on 26 February 2015 to file an amended application or further evidence.  The application is supported by a short affidavit, which I received. 

3. I also have before me as evidence the court book filed on 24 March 2015. 

4. I invited oral submissions from the applicant this afternoon.  He explained that due to his illiteracy, he had been unable to read the Tribunal decision for himself.  He maintains that he is afraid to return to Sri Lanka.  His submissions, however, did not rise above a dispute over the merits of the Tribunal decision. 

5. The grounds in the application have no substance.  The Tribunal decision is clearly based upon the material submitted by the applicant and country information.  In my opinion, the Tribunal dealt comprehensively and conscientiously with all of the applicant’s claims.

6. The Minister’s solicitor properly raised with me one possible issue arising from [42] of the Tribunal’s reasons:

   The information before the Tribunal indicates that under tightened procedures adopted in November 2012, returnees who are believed to have left the country in breach of the law on immigration and emigration (the Immigrants and Emigrants Act) are arrested at the airport and brought before a magistrates court for a bail hearing.  Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety.  If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison, possibly for some days, until a bail hearing is possible.  Conditions in Negombo prison have been described in media reports[1] as overcrowded and unsanitary, although there is no evidence to indicate that returnees held there awaiting bail hearings on charges of breach of the Immigrants and Emigrants Act have been subjected to torture or other forms of deliberate mistreatment.

   [1] ‘Asylum denied, a penalty waits at home,’ Ben Doherty, Sydney Morning Herald, 8 December 2012, >

   I was taken to the decision of the Federal Court in Minister for Immigration v SZTQS[2].  I was also taken to the later decision of the Full Court in SZTAP v Minister for Immigration[3], in particular at [74] and [75].  Finally, I was taken to the recent decision of Gilmour J in ACC15 v Minister for Immigration[4], in particular at [25].

   [2] [2015] FCA 1069

   [3] [2015] FCAFC 175

   [4] [2016] FCA 97

7. Two things may be drawn from those authorities. The first is that the question of whether s.425 of the Migration Act 1958 (Cth) is relevantly engaged in relation to the issue dealt with by the Tribunal at [42] of its reasons depends on the facts of each case. In particular, SZTQS can be distinguished on its facts.

8. Secondly, and obviously, if the section is hypothetically engaged the next question is whether the applicant has been put on notice about the relevant dispositive issue either by the Minister’s delegate or by the Tribunal. 

9. Having regard to the facts of this case I think it most unlikely that the question of whether a surety would have been required from the applicant’s family prior to his release on bail was a dispositive issue in this case.  However, even if it was there is not a proper evidentiary basis before me to determine whether or not the applicant was put on notice of it. 

10. The applicant was put on notice in order 2 made by Registrar Morgan on 26 February 2015 that it was his responsibility to provide any transcript of the Tribunal hearing.  I accept that that would have been a difficult task for him given his illiteracy.  It is also relevant that in his affidavit the applicant sought the assistance of a pro bono lawyer. 

11. I did not make any arrangements for the applicant to receive legal assistance because it did not seem to me prior to this hearing that there was any issue warranting such assistance.  On the basis of the authorities identified this afternoon by the Minister’s solicitor, I remain of that view and I do not consider that the issue is one requiring a final hearing in this case. 

12. I will direct that the name of the second respondent be amended to the Administrative Appeals Tribunal. 

13. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

14. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale. The applicant says he is impecunious. That is probably true but that is not a reason for the court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  7 March 2016