SZWCB v Minister for Immigration

[2015] FCCA 528

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCB v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 528

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – whether all information had been put to the applicant – complementary protection – law of general application – no jurisdictional error.

PRATICE 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

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190; 235 ALR 609; 96 ALD 1
Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: SZWCB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 330 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 Jones

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondent: Ms Warner-Knight

Solicitors for the Respondent: Australian Government Solicitor

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 330 of 2015

SZWCB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under s.476 of the Migration Act 1958, in respect of which the applicant seeks a Constitutional writ in respect of a decision of the Tribunal on 14 January 2015 affirming the decision not to grant a Protection (class XA) visa.  The grounds of the application are as follows:

   1. The Tribunal failed to comply with s 424A or 424AA of the Migration Act 1958 (“the Act”) in respect of information that it considered would be there reason or part of the reason for affirming the decision under review.

2. The Court’s originating process indicates the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings and the return of the matter. 

3. This matter, having read through the Tribunal’s decision and having looked at the grounds of the application, the Court raised with the applicant’s solicitor the concern that the proceedings appear doomed to failure for failing to identify any arguable jurisdictional error, and that it may be appropriate to deal with the proceedings summarily.

4. In considering the exercise of s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principle in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

5. The kernel of the argument developed by Mr Jones was that in the reasons of the Tribunal, it refers to an interview dated 10 July 2012 in para.[12]. Notwithstanding that it is suggested by the Tribunal reasons that was the applicant’s document, it is said by the applicant not to be the applicant’s document, and therefore it was argued was not excluded by reason of s.424A(3)(ba).  Mr Jones said that this was information that should have been put to the applicant under s.424A in relation to the adverse findings, relevantly, at para.36, where Tribunal said:

   36. I find all these explanations to be unconvincing. I also note that in his maritime arrival interview he said that he received training from the LTTE for one day. In his statement he said that training was one month long.

6. S.424A requires clear particulars of information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. It is clear that s.424A, in this regard, does not include the subjective appraisals, thought processes, or determinations of the Tribunal. The section is directed to something that constitutes a rejection, denial, or undermining, relevantly, of the applicant’s claims to be a person to whom Australia owed protection obligations, in respect of which the Tribunal considers that would be a reason or part of the reason for affirming the decision that is under review.

7. Whilst there is an objective element in relation to the question of whether information is of a kind that falls within s.424A, I am clearly satisfied that the applicant’s interview in the present case was not of a kind that falls within s.424A.

8. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190; 235 ALR 609; 96 ALD 1 at [17], the majority said:

   17. Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

9. Paragraph 36, is clearly just part of the reasoning process of the Tribunal, which is not caught by s.424A, consistent with the principles identified in SZBYR. 

10. The second argument developed by Mr Jones was that Direction 56, which was tendered into evidence and marked exhibit A, constituted an impermissible direction as to the weight that must be given to the country information.  It is clear that Direction 56 amounted to no more than identifying a mandatory obligation to have regard to the country information, and was not a direction identifying that any evidentiary weight of a particular kind must be given to that information.  It does not in any way fetter impermissibly the decision-making process of the Tribunal, and there is no substance in the second ground.

11. In this case, the Tribunal identified the central issues as to whether the applicant had a well-founded fear of being persecuted in Sri Lanka for one or more of the five Convention reasons set out in the Refugees Convention, and if not, whether there were substantial grounds for believing it as a necessarily foreseeable consequence of him being removed from Australia to Sri Lanka there’s a real risk that he will suffer significant harm. 

12. The Tribunal identified the relevant law it had to apply and identified the applicant’s claims.  The Tribunal accepted that the applicant was a citizen of Sri Lanka and that Sri Lanka was his country of reference.  In considering whether or not the applicant had a well-founded fear of persecution, the Tribunal identified a careful analysis in relation to the credibility of the applicant in respect of his various claims.  The Tribunal found in paragraph 23:

    23. The evidence that the applicant had provided in his application or in his previous statement was inconsistent with each of these claims.

13. The solicitors for the applicant materially acknowledged the “embellishment” of the applicant in relation to the information he provided in respect of the first three matters, being: 

    (a)that two of his colleagues working with him at the factory had been taken away by the authorities shortly before the applicant left Sri Lanka;

    (b)he had been repeatedly visited by authorities after leaving the camp;  and

    (c)had been repeatedly interrogated by authorities after leaving the camp.

14. It was submitted that these matters were the cause of his fear of returning to Sri Lanka, and materially, the applicant in his statutory declaration said: 

    24. … I admit that I made-up that two people were taken away and I over-exaggerated the number of visits by the Sri Lankan authorities and the interrogations associated with that.

15. These were serious falsehoods by the applicant, albeit that in a statutory declaration he sought to apologise for informing the Tribunal of those matters that were not true.  As the Tribunal properly observed:

    25. Regrettably this admission confirms that the applicant was prepared to give untrue evidence to the Tribunal (because of his fear of returning to Sri Lanka) and did in fact do so.

    26. …Upon questioning by the Tribunal he gave lengthy evidence, now admitted to be untrue, that he decided to leave Australia when two colleagues who had worked with him in the factory were captured two and three months respectively before he left Sri Lanka; those colleagues lived in two different villages where he used to visit; he found out that his colleagues had disappeared because he used to visit them. He also told me that the CID visited him and questioned him many times after being released from the Army camp.

    27. His evidence in relation to these matters is now admitted to be untrue.

16. It was in this context that the solicitors for the applicant endeavoured to submit that the statutory declaration could be reconciled with the applicant’s evidence in the statutory declaration.  The Tribunal noted in para.30:

    30. There were other inconsistencies between what the applicant told me and what appeared in his statement and application. There are almost always differences between the evidence given to peers in an application and supporting documents and the application and the evidence given at the hearing. This is because evidence is given, and statements taken, in a variety of circumstances, at a variety of times. Sometimes these differences are inconsequential, on other occasions the differences, or the inability to explain the differences, are of some significance.

17. It was in this context that the Tribunal made the finding in paragraph 36:

    36. I find all these explanations to be unconvincing.    

18. The reference to the interview and the maritime arrival was clearly not a material matter in the context of the admitted lies that the applicant had already told.  In these circumstances, even if there was an error of the kind identified in ground 1, this is clearly not a case in which as a matter of discretion the Court would have exercised that discretion in favour of the applicant in any event.  However, for the reasons I’ve given, there was no such error, and I’m plainly satisfied that there is no arguable case relating to s.424A or s.424AA.

19. The Tribunal continued in para.[46]:

    46. I do not accept that he fled Sri Lanka because of a fear that he would be captured by Sri Lankan authorities or tortured. I find, as he states in his statement, that months after being released from the camp he became aware of the opportunity to come to Australia, and that he seized the opportunity to flee. I do not accept that the authorities had an interest in him, that is why he was released in 2010. I do not accept that they have any interest in him now, save that he left Sri Lanka illegally. 

20. The Tribunal then dealt with the alleged visa persecution:

    54. As noted I reject the claim that the applicant was recruited by the LTTE or forced to work for it as a tailor. The applicant gave evidence that he was not otherwise a member of the LTTE, that he never occupied any position of influence, that he was a supporter of the LTTE. He did not suggest that he had family links to any such person. The links relied on were his claimed employment as a tailor, which I have rejected. The principal matter on which he claims that he will be imputed with pro-LTTE political opinion is his being a Tamil. In the circumstances I am not satisfied that there is a real chance that the applicant will be seriously harmed by reason of his race, or actual or imputed political opinions if he returns to Sri Lanka.

    …

    56. As I have not accepted that the applicant was a former employee of the LTTE I do not accept, nor do I find, that he is a member of that claimed particular social group.

    …

    59. Given this information I am not satisfied that there is a real chance that the applicant will be seriously harmed by reason of being a young Tamil male from the north if he returns to Sri Lanka.

    …

    63. However, 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 investigated on return and being detained is the result of the non-discriminatory enforcement of a law of general application. The purpose of the I&E Act is stated as being:

    To make provision for controlling the entry into Sri Lanka of persons other than citizens of Sri Lanka, fore regulating the departure from Sri Lanka of citizens of and person other than citizens of Sri Lanka, for removing from Sri Lanka undesireable persons who are not citizens of Sri Lanka, and for other matters incidental to or connected with the matters aforesaid.

    …

    65. In the circumstances I am not satisfied that there is a real chance that the applicant will be seriously harmed by reason of being a member of any of the particular social groups claimed.

21. It was in these circumstances the Tribunal said that it was not satisfied that there is a real chance the applicant will be seriously harmed by reason of being a member of any particular social group as claimed.  The Tribunal concluded, having considered the applicant’s fears of serious harm amounting to persecution both individually and cumulatively, that the Tribunal did not accept the applicant has a real chance of serious harm for any of the reasons claimed, or cumulatively, or rising on the evidence.  It follows that the Tribunal was not satisfied the applicant faced a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future. 

22. The Tribunal turned to consider the complementary considerations:

    68. Because of my findings set out above, I do not accept that there is a real chance of the applicant suffering serious harm in Sri Lanka for reasons of his Tamil ethnicity, political opinion or membership of any of the particular social groups he claims. While I am satisfied that the applicant will be charged with offence under the I&E Act if he returns, that he will be remanded in custody and that will face the penalty of a fine, I am not satisfied that this treatment could reasonably be seen to constitute significant harm under Australia’s complementary protection arrangements set out in 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. Accordingly I do not accept therefore that there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real chance that the applicant will suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that he would be arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, or that he will be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

23. It was in these circumstances the Tribunal concluded as follows:

    70. For the reasons given above, the Tribunal is no 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).

    71. 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).

    72. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

24. It is in light of the above findings by the Tribunal that it is clear that ground 1 is doomed to failure, as too is ground 2.  It was open to the Tribunal to take into account the country information.  That country information was relevant in relation to the application of a general law. The general law was not applied on a discriminatory or arbitrary basis to a person upon being returned to Sri Lanka.  The findings made by the Tribunal that that Immigrants and Emigrants Act 1949 (Sri Lanka) applies to all Sri Lankans, and is not applied arbitrarily or discriminatorily was clearly open.  I am satisfied that there is no jurisdictional error of the kind raised in ground 2.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  I summarily dismiss the proceedings. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 March 2015