SZWBX v Minister for Immigration

[2015] FCCA 1419

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBX v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1419

Catchwords:
MIGRATION – Application dismissed summarily for non-appearance – application for reinstatement of proceedings – relevant considerations – no merit in substantive application for review – application for reinstatement refused.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 46A, 476

Federal Circuit Court Rules2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)

MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530
SZRUR v Minister for Immigration & Border Protection (2013) 216 FCR 445

Applicant: SZWBX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 312 of 2015

Judgment of: Judge Smith

Hearing date: 29 April 2015

Date of Last Submission: 29 April 2015

Delivered at: Sydney

Delivered on: 29 May 2015

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr S. Speirs, Clayton Utz

ORDERS

1. The applicant’s application in a case seeking reinstatement of the proceedings, filed on 16 April 2015, be dismissed.

2. The applicant pay the first respondent’s costs of the application in a case fixed in the amount of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 312 of 2015

SZWBX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 18 May 2012. On 23 August 2012 the first respondent (“Minister”) exercised the discretion under s.46A of the Migration Act 1958 (“Act”) to allow the applicant to apply for a protection visa. The applicant made such an application on that date and that application was rejected by a delegate of the Minister on 5 September 2013.

2. The applicant applied to the second respondent (“Tribunal”) for review of the delegate’s decision. On 14 January 2015 the Tribunal made a decision to affirm the delegate’s decision. On 9 February 2015 the applicant applied to this Court under s.476 of the Act for judicial review of the Tribunal’s decision. On 3 March 2015 the Court ordered, by consent, that the matter be listed for hearing on 16 April 2015 at 11.00am. It also ordered the parties to file and serve written submissions and list of authorities prior to the hearing. The matter was called on for hearing shortly after 11.00am on 16 April 2015. The applicant did not appear and the Court ordered that the application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“Rules”). That rule provides:

   (1)If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

   (a)     adjourn the hearing to a specific date or generally;

   (b)     order that there is not to be any hearing, unless:

   (i)     the proceeding is again set down for hearing; or

   (ii)     any other steps that the Court directs are taken;

   (c)if the absent party is an applicant – dismiss the application;

   (d)if the absent party is a party who has made an interlocutory application or a cross claim – dismiss the interlocutory application or cross claim;

   (e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.

   …

3. Later on the same day the applicant filed an application in a case seeking following orders:

   1.I am the applicant

   2.I have no lawyer to assist and advise me with my court application.

   3.Please re coll my case, I late come court because sick.

   (Errors in original)

4. In an affidavit made on the same day, the applicant repeated the first two of these grounds but otherwise set out no basis upon which the orders he sought ought to be made.

5. The application in a case was listed before me for hearing at 10:15am on 29 April 2015. The applicant appeared unrepresented. Mindful of the approach to unrepresented litigants examined by the Full Court of the Federal Court in SZRUR v Minister for Immigration & Border Protection (2013) 216 FCR 445 and particularly the comments by Allsop CJ at [53], I invited the applicant to give sworn evidence as to the reasons for which he failed to appear on 16 April 2015.

6. The applicant said that, although he was aware that the matter had been listed for hearing at 11.00am, he was late because he had been unwell the night before and had to come a long way by train. He said that he arrived at the Court at 11:20am and spoke immediately to security guards in the vicinity of the Court. He said that the guard told him that he should speak to the Court’s associate and that when he did so he was told to apply to the Court’s registry. He then went to the registry and filed his application for reinstatement.

7. This Court has power to vary or set aside its judgement after it has been entered if the order is made in the absence of a party: r.16.05(2)(a) of the Rules. The principles to be applied by the Court in exercise of that power were explained as follows by Ryan J in MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 at [7]:

   7.In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable.  That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement.  Those factors are:

   (a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out; 

   (b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant; 

   (c)whether the applicant has a reasonably arguable prospect of success on the substantive application.  As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1066 at [18]:

   The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success.  If not, there is no purpose in reinstatement.

8. As to the first of these considerations, I consider, on the evidence given by the applicant at the hearing before me, that there was a reasonable excuse for his failure to appear. He frankly accepted that he was aware that the matter had been set down at a particular time and was only 20 minutes late in attending. I accept that his lateness was caused by an illness not only because it was uncontested by the Minister, but also because of the speed with which the applicant took steps to overcome the judgment entered in his absence and the frank manner in which he gave evidence.

9. I do not consider that there is any prejudice to the Minister if the order for reinstatement were made that could not be assuaged by an order for costs. For those reasons, the first two factors favour an order made in favour of the applicant. However, for the reasons that follow I am not persuaded that there are sufficient merits in the case to warrant the order being made.

10. The grounds in the originating application filed are as follows:

    There is information before the RRT and the country information on Sri Lanka indicates that the failed asylum seekers are held in prison several days in overcrowded and unpleasant conditions. The prison conditions are poor.

    The RRT made an error when deciding that cruel or inhuman treatment or punishment would not be intentionally inflicted upon me if I was placed in prison on remand for several days on my return to my home country, because the RRT has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions. The RRT has not considered whether the fact of possible placement of me in the overcrowded jail which has unpleasant conditions by the Sri Lankan authorities would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.

    The RRT has failed to consider cumulatively the risk of harm on my arrival as a failed asylum seeker, Tamil by race and my cousins were members of the LTTE.

    If this Court provides me a Lawyer I can provide more details of the errors that the RRT has made in my review.

11. When asked at the reinstatement hearing what arguments he wished to raise in support of the initiating application the applicant simply said that if he had time he could get a lawyer to help him.

12. In order to put the grounds in context and also to determine whether or not there are any other arguable grounds for relief, it is necessary first to consider the claims made by the applicant in support of his application for a protection visa and then the reasons for which the Tribunal affirmed the delegate’s decision.

13. The applicant’s original claims were set out in a document entitled statement of claims as follows:

    5.My problems started primarily because I was working as a teacher in the area controlled by the LTTE. I used to travel in an out of that zone almost every day to teach at school. I was a public servant and the paramilitary groups would not harm me directly but I was always a suspect to them. I am a Tamil and they were suspicious that I would take information to LTTE about the activities of the government forces. I had no associations with LTTE but I was perceived to have had such associations with LTTE.

    6.I purchased an auto rickshaw on 11/11/2010. I used it primarily for private use until 03/2011 but then started carrying passengers with it after teaching at school to make money. I was repeatedly approached by the paramilitary groups to give them free ride and take them from one place to another. I believe that they were intending to harass me and provoke me to respond so they find an excuse to harm me. I would try to avoid them but it was not always possible.

    7.The same people then started coming to my home at nights and knocking on the door. It caused my family great distress. We did not feel safe. I never opened the door to them but it was always a frightening prospect to open the door to armed men at night. Nobody could guarantee our safety.

    8.In July 2011, I was directly threatened by a militant that he would kill me if he saw me driving auto rickshaw again after I refused to give him a free ride.

    9.Finally in September 2011, the frequent night harassments and the threats that I had received caused me to relocate my family to Colombo. I used to visit them on weekends and stay in my home town whilst teaching at school in weekdays. I did not register my family in Colombo. I did not drive a auto rickshaw anymore for the fear of losing my life.

    10.In two other incidents, whilst I was in Colombo to visit my family, I was stopped and questioned by the police. They checked out my identity card and asked me what I was doing in Colombo. I was lucky that they let me go after finding out that I was a teacher. There have been incidents the Tamils have been picked up by the police in Colombo and basically disappeared after that.

14. In written submissions to the Tribunal dated 26 September 2013 the migration agents acting for the applicant added to these claims and summarised the reasons for the applicant’s fear of harm as follows:

    The essential and significant motivation for the applicant’s fears are on the account of his:

    ·race - as a Tamil;

    ·political opinion - of being opposed to the Sri Lankan government as a consequence of his race, his familial support to the Liberation Tigers of Tamil Eelam (“LTTE”) and his act of seeking asylum in Australia; and

    ·membership of particular social groups (“PSG”) namely; “Tamil failed asylum seeker who left the country illegally”; “Young Tamil men who are suspected of associating with or supporting the LTTE”; “Tamils with familial links to persons suspected of associating with or supporting the LTTE” and “Tamil men from the Eastern province of Sri Lanka”.

15. In further written submissions provided by the applicant’s migration agent after the Tribunal’s hearing, it was submitted that there was a real chance of a returnee, particularly a Tamil returnee, being harshly treated by the authorities for having illegally departed the country. The submissions also referred to reports of torture, cruel and degrading punishment or treatment faced by those held in police custody or in prisons and, in particular, to reports of overcrowding and poor conditions in prison especially the lack of hygiene, inadequate medical care, the non-separation of convicted and remand prisoners and the failure to keep adult detainees and juvenile offenders separate.

16. The Tribunal made its decision on 14 January 2015. It accepted that the applicant was a teacher who was questioned and/or hit on occasion during periods of heightened tension in 1997 to 1998 and that he had been beaten in 2005 because he was suspected of being an LTTE supporter/sympathiser before being transferred to another, safer school. It also accepted that after being transferred he was only ever questioned but not harmed and that he was allowed to pass through checkpoints between his home and the school where he worked.

17. However, the Tribunal found that the applicant was not of any ongoing interest to anyone after he sold his rickshaw and stopped operating unlawfully as a taxi driver and that in any event, such work did not impute him with any political or other conviction.

18. The Tribunal accepted that members of the applicant’s family (two cousins and an uncle) had been killed or imprisoned in the service of the LTTE but as that had not had an impact to date upon the applicant or his immediate family, it found that those circumstances did not give rise to a real chance of harm should he return to his home town.

19. In respect of the applicant’s illegal departure from Sri Lanka, the Tribunal accepted that punishment under the relevant law was applied differently by different judges in Sri Lanka, however it was not satisfied that any protection obligations arose from this. That was because the law was not applied in a discriminatory fashion based upon race or ethnicity such as being Tamil and that it was otherwise a generally applicable law. For those reasons, any harm that might come to the applicant by virtue because of his illegal departure was not for a Convention reason. It also found that the chance that the applicant may be subject to a custodial sentence was remote. On the other hand, it found that even if he was subject to a brief period in detention it was not satisfied, again, that that harm would be because of one of the Convention grounds.

20. In respect of the claim of being harmed for being a failed asylum seeker, after consideration of the country information, the Tribunal found that the main focus of the Sri Lankan authorities was whether a person is suspected of being an ongoing threat to the Sri Lankan regime. For that reason, in light of the applicant’s background and other characteristics, it was not satisfied that there was a real chance of him being persecuted should he be returned to Sri Lanka as a failed asylum seeker.

21. The Tribunal then found that “even considering those of the applicant’s claims that I have accepted cumulatively, I remain not satisfied he is a person in respect of whom Australia has protection obligations”: [65].

22. The Tribunal then turned to consider the criterion in sub-s.36(2)(aa) of the Act. In this respect the Tribunal dealt with the prison conditions and, while appearing to accept the information concerning those conditions, found that there was no real risk of the applicant suffering harm because such harm would not be intentionally inflicted upon him.

23. The Tribunal concluded that the applicant did not satisfy this criterion either and so affirmed the decision under review.

24. It appears that the first two paragraphs of the initiating application come down to the single proposition that the Tribunal erred by failing to find that there was a real risk that the applicant would face significant harm within the meaning of the Act in light of its apparent acceptance of the information concerning overcrowding and unpleasant prison conditions in Sri Lanka. The answer to that proposition is found in the Act.

25. The expression “significant harm” found in sub-s.36(2)(aa) of the Act is defined by s.36(2A) relevantly to include “cruel or inhuman treatment or punishment”, and “degrading treatment or punishment”. Those terms are, in turn, defined by s.5(1) of the Act.

26. “Cruel or inhuman treatment or punishment” is defined to mean:

    an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on the person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as crawl or inhuman in nature;

    …

27. “Degrading treatment or punishment” is defined as:

    An act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    …

28. Thus, both of the relevant meanings of “significant harm” require some element of intention. The Tribunal appreciated this: see [71], [74] and [75]. Further, its findings at [74] that there was no real risk of degrading treatment or punishment arising from an act or omission that caused, or intended to cause, extreme humiliation and at [75] that there was no real risk of harm that was intentionally inflicted on him conclusively dealt with the issues arising on the material before it in the terms of the criterion. For those reasons, the first ground as contained in the first two paragraphs of the initiating application has no merit.

29. The third paragraph in the grounds of the application is that the Tribunal failed to consider the claims made on a cumulative basis. However, as noted at [21] above, the Tribunal did so expressly. This ground, too, has no merit.

30. The final ground did not raise any question of error in the Tribunal’s decision.

31. For those reasons the applicant has not raised any arguable grounds of review. There is no other ground that appears from the material before me. The Tribunal appears in its statement of reasons to have considered each of the applicant’s claims and dealt with them on the basis of the evidence before it. It appears that the Tribunal invited the applicant to a hearing in accordance with its obligations under div.4 of pt.7 of the Act and there is no evidence to suggest that that hearing was not conducted fairly and otherwise in accordance with Tribunal’s obligations.

Conclusion

1. For each of those reasons, there is no merit in the application for review of the Tribunal’s decision. There will be no utility in an order reinstating the application for further hearing. On that basis, even though the applicant had a reasonable excuse for not appearing at the first hearing and no irremediable prejudice would be suffered by the Minister if the matter were reinstated, the application for reinstatement should be refused. The applicant should pay the Minister’s costs of the application for reinstatement, which I set in the amount of $3,416.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 29 May 2015