SZWBS v Minister for Immigration
[2015] FCCA 531
•5 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWBS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 531 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) Federal Circuit Court Act 1999, s.17A Federal Circuit Court Rules 2001, r.13.10 Migration Act 1958 |
| MZAPO v Minister for Immigration & Anor [2015] FCCA 96 Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | SZWBS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 302 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 5 March 2015 |
| Date of Last Submission: | 5 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr F. Nikjoo |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondent: | Ms M. Stone |
| Solicitors for the Respondent: | DLA Piper Australia |
ORDERS
The proceedings be summarily dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $1100.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 302 of 2015
| SZWBS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958, with respect to a decision of the Tribunal on 13 January 2015 affirming the decision not to grant the applicant a Protection (class XA) visa.
The application filed identifies with the following grounds and I have the grounds on page 3 set out:
1. The Tribunal considered the wrong issue of duration in its assessment of whether the applicant would suffer serious or significant harm while being proceed under the Sri Lankan Immigrants and Emigrants Act for Illegal departure.
2. The Tribunal failed to consider the lack of standardise procedures for the application and administration of the Sri Lankan Immigrants and Emigrants Act.
Particulars
a. A discretionary decision has to be made as to when a returnee is taken before a Magistrate for a bail hearing which will be carried out in the Sinhala language;
b. Whether there is a family members who can attend the bail hearing in either Colombo or Negombo;
c. Whether an assurance can be provided;
d. A discretionary decision as to the amount of the assurance required and whether a family member can provide the assurance;
e. If there are any problems for non-Sinhala speaking returnees and family members in participation in the bail and final hearings and how they are treated;
f. The Magistrate in Negombo is rep1ied to hand down the amount of fines ten times more than the Magistrate in Colombo indicating further there are no standardised procedures;
g. The applicant will return to his home village with a conviction; and
h. As there are no standardised procedures there is a real chance that the applicant would be treated in a systematic and discriminatory manner in the administration of the Sri Lankan Immigrants and Emigrants Act.
The originating process indicates on its face that the Court may hear and determine all interlocutory or final issues or may give directions for the future conduct of the proceedings.
In this case, having read the decision of the Tribunal and looked at the alleged grounds of the application, the Court was concerned that there appeared to be no arguable ground of jurisdictional error and was minded to consider whether the matter should be summarily dismissed.
In considering exercising the summary dismissal power under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].
In this case, the Tribunal identified the application for a protection visa, was lodged on 22 November 2012 and was the subject of an interview by the delegate with the applicant on 7 March 2013. The delegate refused to grant the visa on 9 August 2013.
The applicant sought a review before the Tribunal and appeared before the Tribunal on 24 November 2014 to give evidence and to present arguments. The applicant on that occasion was assisted by an interpreter and was represented at the hearing by his migration agent. The Tribunal identified the central issues of whether the applicant had a well-founded fear of being persecuted in Sri Lanka for one of the five reasons set out in the Refugees Convention and if not, whether there were substantial grounds for believing there was a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm.
The Tribunal carefully set out the relevant law and identified the documents provided by the applicant, following the applicant’s irregular maritime arrival and interview on 28 August 2012. Relevantly, the Tribunal noted that:
16. … While the delegate accepted that the applicant was an active worshipper at the Temple, and that he and his family, including his grandfather, had been involved in Temple activities, she did not accept that he had a specific profile that would cause him to be targeted because of his Temple activities. Nor did she accept his claims about the incidents involving [A]. Consequently she found that he was not of interest to [MS]. The delegate found the account of the formation of the society to promote Hinduism to be completely implausible. She concluded that the applicant had never been a person of ongoing interest to the Sri Lankan authorities.
The Tribunal found that the applicant was a citizen of Sri Lanka and assessed his claim with Sri Lanka as his country of reference.
Having identified the background of the applicant, the Tribunal noted that it had asked him about his statement in respect of the alleged arrest and assault and he was asked to explain the differences between the accounts he had given. The Tribunal said:
25. …In the circumstances I do not accept that he was arrested and assaulted as claimed.
26. Nor do I accept that, as claimed in his statement that, following this Festival, he and 24 others decided to form a society to promote Hinduism, but before they were to hold their inaugural meeting the CID came to each of their homes, interrogated them, and informed them that they would be arrested and accused of being LTTE supporters if the group proceeded to form. He made no mention of this to me during the hearing. When I asked him if there was any reason if he had ever formed such a society, he gave an explanation at odds with what appears in his statement, and consistent with the participants already being active members of a group which supported Temple activities.
The Tribunal also rejected the applicant’s evidence as to the alleged assault having occurred as claimed and said:
31. I consider that this component of the applicant’s claim has been exaggerated and embellished.
At para.[36] the Tribunal said:
36. Given these unexplained inconsistencies I have considerable doubts about the applicant’s evidence about this incident, and consider that, while a Temple Gate Tower was to be built, in which the applicant and his colleagues were to participate, I do not accept that [MS] was present on 3 June 2012 as claimed, that [A]’s brother threatened to kill him, or that [A] came to his shop at any time with a group of armed men to attack him.
The Tribunal carefully identified, in summary, the assaults and made findings as set out in para.[38]:
38. In summary, in relation to claimed assaults and arrests:
· I find that during the 2009 Velvi Festival Sinhalese protesters threw stones at the applicant and hit him with sticks in 2009, as a result of which the applicant suffered scarring on his head;
· I find that the applicant was not arrested or assaulted during the 2010 Velvi Festival;
· I find that the applicant was not assaulted during the 2011 Velvi Festival; and
· while I find that while a Temple Gate Tower was to be built in 2012, in which the applicant and his colleagues were to participate, I do not accept that Minister Silva was present on 3 June 2012 as claimed, that Ajith’s brother threatened to kill the applicant, or that Ajith came to his shop at any time with a group of armed men to attack him.
The Tribunal then turned to assess the applicant’s fears of persecution and relevantly found:
43. I do not accept that the applicant faces serious harm if he returns to Sri Lanka on account of being an active member of his local temple, or because he is a member of a group that supports Temple activities.
The Tribunal at para.[51] said:
51. There is no suggestion in the materials that the applicant was a member of the LTTE, or held any position in it, or was a supporter of the LTTE, is perceived as having links to the LTTE or has family links to any such person. Accordingly I do not accept that the proposition that, simply because of his Tamil ethnicity, the applicant faces serious harm if he returns to Sri Lanka.
The Tribunal then carefully addressed the issue of illegal departure and set out the DFAT material and relevantly identifying the Immigration and Emigration Act as a law of general application, which wasn’t applied arbitrarily or discriminatively. The Tribunal accepted that it may be possible that the applicant will be charged with an offence under the Immigrants and Emigrants Act upon his return. The Tribunal said:
56. I do not accept that one or more of the five Convention reasons, including membership of a particular social group of those who have departed Sri Lanka illegally, will be the essential and significant reason for the applicant being detained and/or fined if he returns to Sri Lanka.
The Tribunal carefully identified the purpose of the Act as being one for a proportionate, legitimate purpose for the benefit of the people of the state. The Tribunal said at para.[57]:
57. The Act applies to all Sri Lankan citizens, save for those exempted by operation of s.2.10 Thus, an essential and significant reason for penalties under the Immigrants and Emigrants Act is to prevent unregulated departures from Sri Lanka of Sri Lankan
citizens, and being charged under that Act and being detained is the result of the non-discriminatory enforcement of a law of general application.
I note that the Tribunal has clearly turned its mind to and made findings as to the character of the law that would be applied to the applicant in identifying it to be a law of non-discriminatory enforcement and a law of general application.
The Tribunal also considered the issue of failed asylum seekers as a source of fear and found:
63. I do not accept that one or more of the five Convention reasons, including membership of a particular social group of those who were failed asylum seekers, will be the essential and significant reason for the applicant being detained if he returns to Sri Lanka. Being detained on return, and subsequently investigated, monitored and possibly fined is the result of the non-discriminatory enforcement of a law of general application.
The Tribunal identified that it considered the applicant’s fears, individually and cumulatively and held that:
64. I have considered each of the applicant’s fears of serious harm amounting to persecution both individually and cumulatively. I do not consider that the applicant has real chance of serious harm for any of the reasons claimed, or cumulatively, or arising on the evidence. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future and that the Tribunal is not satisfied that the applicant is a refugee under s.36(2)(a) of the Act.
The Tribunal went on to deal with the complementary protection criteria, relevantly found, and it did not accept that the applicant will suffer significant harm for reasons of religion or race if he returns to Sri Lanka. Then the Tribunal noted that it accepted:
67. As discussed above, I accept that it is possible that the applicant may be charged with offence under the Immigration and Emigration Act of Sri Lanka if he returns, that he may be remanded in custody, investigated and monitored, but that the most likely penalty is a fine. I find that a period in custody and/or the imposition of a fine does not amount to significant harm under s.36(2A) of the Act in that it does not constitute the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
…
69. For the reasons given above, the Tribunal 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).
70. 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).
In relation to the first alleged ground, it is clear in this case that the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 can be distinguished, in relation to the application of s.91R for the cumulative reasons required under 91R(1), and the adverse finding made by the Tribunal of the same kind as identified in SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2. The finding that the applicant did not face a well-founded fear of persecution for a convention reason means there is no substance in ground 1.
Further, I am satisfied the decision of WZAPN can be distinguished, as that was a case where there was a finding of arbitrary detention and here there was clearly a finding of the application of a general law that would not be applied either arbitrarily or on discriminatory grounds, and the decision is distinguishable on the basis that the Tribunal addressed the character of the law as identified in MZAPO v Minister for Immigration & Anor [2015] FCCA 96. In those circumstances, ground 1 is clearly doomed to failure.
In relation to ground 2, it is clearly a matter for the Tribunal to make findings of fact in relation to the issue of harm that may arise under the complementary protection criteria, and ground 2 is, in essence, an attempt to engage in an impermissible challenge to findings of fact. I am satisfied that the Tribunal did properly consider the consequences for the applicant in relation to being returned to Sri Lanka, and the finding made by the Tribunal that the applicant would not suffer significant harm was a finding of fact that was open to the Tribunal, and it cannot be said that finding lacks an evident and intelligible justification.
The proposition in relation to ground 2, that the Immigrants and Emigrants Act is not a law of general application, is an impermissible challenge to the finding of fact made by the Tribunal. That finding by the Tribunal was clearly open and is entirely consistent with the legitimate legislative object identified by the Tribunal. The finding that the law was not applied discriminatorily was open to the Tribunal and gives rise to no jurisdictional.
In these circumstances, the grounds identified are doomed to failure. I am clearly satisfied that the proceedings have no reasonably prospect of success. The proceedings are summarily dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 11 March 2015
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