SZWBY v Minister for Immigration

[2015] FCCA 539

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 539

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – law of general application – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999 s.17A
Federal Circuit Court Rules 2001 r.13.10
Migration Act 1958 s.359A

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: SZWBY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 313 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: In Person

Solicitors for the Applicant: Self-Represented

Counsel for the Respondent: Ms Given

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 313 of 2015

SZWBY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the applicant is seeking a constitutional writ in respect of a decision of the Tribunal delivered on 19 January 2014 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The grounds of the application as are follows:

   The RRT has applied the incorrect test pursuant to S.91R(2) of the Migration Act 1958 Act.

   Particulars

   By proceeding to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asked whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the applicant of s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection & Another [2014] FCA 947 at (30) and (45).

3. In the application on the return date it identifies:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings. 

4. The Court indicated to the parties, that having read the application and the Tribunal decision, the Court was of the view that the matter did not appear to disclose a jurisdictional error and that the Court was inclined to consider whether the matter should be summary dismissed.  In answer to the Court’s inquiry as to what grounds the applicant relied upon to identify an arguable jurisdictional error the applicant identified that he may be abducted on his return and he was concerned that his brother had disappeared on being returned and that all the details were in the application. 

5. The applicant was invited to submit anything further he wished to put and no further submission was developed to identify any arguable ground of error in the conduct of the review.  In respect of the Court’s powers 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 that the applicant was a citizen of Sri Lanka and assessed the applicant’s claims on that basis.

6. The applicant applied for a visa on 7 November 2012 and the delegate refused the grant of a visa on 18 July 2013.  The applicant appeared before the Tribunal on 8 January 2014 and gave evidence and presented arguments.  At that hearing the applicant had the assistance of an interpreter and was represented by a migration agent.  The Tribunal carefully set out the criteria to be applied in relation to the protection visa and made detailed findings as to why the decision under review should be affirmed. 

7. Materially, the Tribunal identified that it had concerns about the applicant’s credibility.  The applicant identified the grounds of the protection claims by the applicant and after setting out the applicant’s evidence in relation to those claims the Tribunal noted that it had put the applicant on notice that while the delegate may have accepted some of the aspects of his evidence as credible, the Tribunal would nevertheless have to be satisfied whether or not his evidence was truthful.  The Tribunal said: 

   27. …Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  Accordingly, the Tribunal disbelieves the applicant’s claims that he was involved in conflict at a garment factory where he worked in Colombo; that certain Sinhalese employees reported him to Sri Lankan authorities on suspected involvement with the LTTE; that the CID came to the factory, his home and other places to locate him; that the CID issued a warrant for his arrest and that the Sri Lankan authorities have any adverse interest in him. 

   …

   30. …the Tribunal is satisfied that this applicant is not a witness of truth and so disbelieves his claims about his brother.  At any rate, as the Tribunal has said above, the difficulties the applicant claims he encountered in Sri Lanka and which caused him to leave the country arose in 2011 when conflict commenced between himself, Tamil co-workers and Sinhalese workers at a garment factory in Colombo. 

   …

   33. Because the Tribunal finds the applicant is not witness of truth and because the account of events on which his protection claims are based is false, there is no credible evidence before the Tribunal as to why the applicant left Sri Lanka.  There is no credible evidence that Sri Lankan authorities or anybody else in Sri Lanka wishes to harm the applicant.  There is no credible evidence before the Tribunal as to why the applicant does not want to return to Sri Lanka. 

8. The Tribunal then proceeded to address consideration of whether there was a well-founded fear of persecution and took into account the country information.  Materially, in respect of the alleged ground raised in the application, the Tribunal addressed in considerable detail the potential detention to which the applicant may be exposed on return to Sri Lanka.  Materially, the Tribunal found that any such detention would be due to the operation of a law of general application.  The Tribunal did not find that the applicant was likely to be exposed to application of an arbitrary or discriminatory detention and noted that: 

   41. The Tribunal infers that although Sri Lankan law provides for a custodial sentence as a penalty for leaving the country illegally, the risk of this occurring to an applicant, solely on that ground, is remote.  …

   42. … the Tribunal does not believe that the CID wish to arrest the applicant and does not believe his evidence about being in conflict with Sinhalese employees at a garment factory where he worked in Colombo. …

   43. … Because the applicant is not a witness of truth, the Tribunal disbelieves his claims about his brother and notes, at any rate, that he did not claim to have suffered harm or to have been  placed at risk of suffering harm because of his brother (and there is no credible evidence that he did).  The reasons advanced by the applicant for leaving Sri Lanka and being afraid to return there were the conflict he claims took place at a garment factory where he worked in Colombo.  The Tribunal finds the applicant’s evidence about that to be false. 

   44. The fact he has a brother in Australia who holds a protection visa, in the Tribunal’s view, does not raise the risk of him suffering serious harm on return to Sri Lanka.  It does not cause the Tribunal to depart from the inferences it draws from the country information as to the risk of the applicant suffering serious harm on return to Sri Lanka because he is a Tamil from [U] who left the country illegally and will return there as a failed asylum seeker from Australia.  The Tribunal infers from the country information that the risk of the applicant suffering serious harm on those grounds, singularly or cumulatively, is remote. 

9. The Tribunal carefully assessed the submissions advanced on behalf of the applicant and found that the risk of the applicant suffering serious harm because he is a young Tamil from a specified location is remote. 

10. The Tribunal considered the submissions put in relation to the LTTE and said in light of the country information set out earlier in the decision that a real chance of ill treatment if detained arises for those in risk profiles set out earlier in the decision and not for the applicant just because he is a Tamil from a specified location who left the country illegally and will return there as a failed asylum seeker. 

11. The Tribunal continued:

    54. For the reasons given above, the Tribunal finds there is not a real chance the applicant will suffer serious harm (including for the essential and significant reason of any convention ground) in Sri Lanka.  The applicant does not hold a well founded fear of persecution based on any convention ground.

12. This last finding is material in the context of the cumulative requirements of s.91R, see SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2.

13. I am satisfied that the decision of WZAPN  v Minister for Immigration and Border Protection [2014] FCA 947, where there was a finding of potential for arbitrary detention, is clearly distinguishable for the reasons identified in MZAPO v Minister for Immigration & Anor [2015] FCCA 96. In this case it is clear that the Tribunal turned its mind to the character of the law that would be applied in relation to the detention of the applicant and found that it was a law of general application.

14. The Tribunal found it was not a law being applied discriminatorily or arbitrarily or for a convention reason.  I am clearly satisfied that the Tribunal did not apply the wrong test in relation to the application of s.91R and that there is no substance in the alleged jurisdictional error referring to the decision of WZAPN.  In these circumstances, the proceedings are doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 March 2015