SZWCC v Minister for Immigration

[2015] FCCA 1748

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCC v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1748

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Whether the Tribunal made a finding based on no evidence – whether the Tribunal considered the wrong issue when determining the applicant’s arrest upon his return to Sri Lanka – whether the Tribunal misconstrued the complementary protection provisions of degrading treatment or punishment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 46A(2), 91R

Australian Postal Corporation v D’Rozario (2014) 222 FCR 303

Minister for Immigration & Border Protection v WZAPN (2015) 89 ALJR 639

SZSPE v Minister for Immigration & Border Protection [2014] FCA 267

SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64
SZTCY v Minister for Immigration & Border Protection [2015] FCCA 85
WZAPN v Minister for Immigration & Border Protection [2014] FCA 947

Applicant: SZWCC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 331 of 2015

Judgment of: Judge Smith

Hearing date: 5 June 2015

Date of Last Submission: 23 June 2015

Delivered at: Sydney

Delivered on: 2 July 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondents: Mr L. Dennis, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 331 of 2015

SZWCC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a Tamil who seeks protection in Australia from the authorities of Sri Lanka. The Refugee Review Tribunal’s duties included the consideration of the bases for his claims and the evidence given by him in support of them. The issue for the Court is whether the Tribunal fulfilled that duty.

2. That issue requires a close analysis of both the claims and the way in which the Tribunal dealt with them. That analysis reveals that the Tribunal performed its statutory task and that the application must be dismissed.

Background

1. The applicant claimed that a friend of his was kidnapped on 3 December 2003 and that the applicant complained to the police about the disappearance. The applicant told the police about an armed group that had asked his friend to interpret for them and teach them English and in this way that group became a suspect in the abduction.

2. The applicant claimed that he started receiving threatening phone calls from January 2004 telling him that he was giving out the wrong names and that he should mind his own business or his wife would become a widow. At the end of 2004 he was telephoned again and told to meet somebody in a particular hotel. He did so and then was taken from there to an LTTE camp where, after being threatened was released the following day.

3. In 2007 some members of the armed group stopped the applicant and warned him again and he received three threatening phone calls between January and June 2007. On 10 July 2007 an armed group came to his house in a van but he managed to escape. In 2008 the applicant and his wife moved house because of the constant problems but he continued to receive threatening phone calls.

4. In 2012 the applicant was appointed to a new position as caretaker at a university. One day, as he was going to work there, he was stopped by two people on a motorbike who told him to resign the job and then hit him with a pistol. Subsequently his job was cancelled and he returned to his previous position. From that time the applicant was regularly getting threatening and abusive phone calls. In April 2012 the same two people who had previously threatened him stopped him and threatened that if he did not resign within one month they would kidnap his daughter or they would kill him. The applicant then left Sri Lanka illegally. He claimed that he feared harm on return for that reason and that he would be accused of being involved with the LTTE and the police would try to kill him and that he would be killed because he had given the names of the people associated with the disappearance of his friend.

5. On 10 July 2013 a delegate of the Minister decided to refuse to grant the applicant a visa and the applicant applied to the Tribunal for review of that decision.

6. In written submissions to the Tribunal the applicant’s migration agents summarised his claims as being for reason of:

   a)his Tamil race;

   b)his political opinion – being opposed to the Sri Lankan government as a consequence of his race, his perceived support of the LTTE and the act of seeking asylum in Australia; and,

   c)membership of a particular social group namely, Tamil failed asylum seekers who left the country illegally, Tamil men who are suspected of associating with or supporting the LTTE, and Tamils with links to persons suspected or associated with or supporting the LTTE.

7. The applicant attended a hearing conducted by the Tribunal on 16 December 2014 to give evidence and make submissions in support of his application. After the hearing, the applicant’s agents sent further written submissions to the Tribunal addressing some of the concerns and country information raised by it at the hearing.

8. The Tribunal made its decision to affirm the delegate’s decision on 21 January 2015.

The Tribunal’s decision

1. The Tribunal found that the applicant had fabricated a number of his more recent claims in order to strengthen his application and found that he was not a witness of truth in respect of a number of critical aspects of those claims. It gave five reasons for those conclusions:

   a)the applicant gave inconsistent evidence about the number and timing of threatening phone calls;

   b)he gave different evidence at the hearing about the incident in early 2012 when he claimed to have been stopped by two people on the road who threatened and hit him;

   c)he gave inconsistent evidence about the way in which his new position was terminated;

   d)he gave inconsistent evidence about the threatening phone calls upon his return to his previous position; and

   e)he failed to mention a number of his claims at the initial Entry Interview.

2. The Tribunal then considered the documents relied upon by the applicant to corroborate his claims including a letter from the Bishop of Trincomalee-Batticaloa but, in light of the applicant’s evidence that the claim set out in those letters were based upon information given to the author by the applicant’s family, he gave them little weight.

3. The Tribunal accepted a number of the applicant’s claims as they related to periods in the 1980s including that he was tortured during detention and also the claim that his friend had disappeared in December 2003 and that he had reported that fact to the police. However, they did not accept that he continued to receive any threats after 2007, that he moved house in 2008 because of constant problems, harassment and threats, that he was employed at the Eastern University, or that he was stopped on his way to work in January or February 2012 and threatened. It concluded that the applicant was not of any adverse interest to the Sri Lankan government or authorities, the police or the army due to an imputed political opinion because of the belief by the authorities that he had dealings with the LTTE. It did not accept that there was a real chance that he would be harmed due to his previous detention in 1986 or due to anything relating to his friend’s disappearance in 2003 or relating to his employment at the University.

4. The Tribunal then went on to consider whether the applicant’s Tamil ethnicity and other general matters about the applicant might be sufficient to establish a real chance that he might be harmed in the future. After considering country information relevant to that issue it did not accept that Tamils were at risk of serious harm on the basis of their ethnicity alone or because they are from a particular part of Sri Lanka. It did not accept the applicant had any particular profile or imputed profile such that he would suffer serious harm for reason of his ethnicity as a Tamil.

5. While it accepted reports that people with scarring, such as the applicant, were more likely to be the subject of adverse attention it noted that those reports related to the period immediately after the end of the internal conflict in Sri Lanka and so was not satisfied that that would be the case in the foreseeable future.

6. The Tribunal did not accept that the applicant is or would be perceived to have links to the LTTE because:

   a)he is a Tamil, or a Tamil from Eastern province;

   b)a young Tamil male, or a young Tamil male from Eastern province;  

   c)he had been detained;

   d)his wife’s father committed suicide;

   e)his brother was shot in 1986 and uncle abducted in 1987;

   f)his friend’s wife now lived in Canada;

   g)his brother lives in the UK;

   h)or due to his scarring.

7. The Tribunal then turned to consider whether the applicant faced any risk of harm as a result of his illegal departure from Sri Lanka or for being a failed asylum seeker. While it accepted that the applicant departed Sri Lanka unlawfully it rejected the submission that the relevant law was applied in an inconsistent manner and found that, although there was a real chance that the applicant would be arrested at the airport and brought before a magistrate to apply for bail and might be held in a prison while awaiting for bail, that would only be the result of the non-discriminatory enforcement of a law of general application.

8. Further, the Tribunal found that it was not satisfied that returnees are subject to mistreatment while in custody at the airport or on remand and while it accepted that Sri Lankan prison conditions were poor due to overcrowding and unsanitary conditions any harm that resulted from that was not a valid Convention reason. In any event it found that the chance of his being given a custodial sentence for illegal departure was remote.

9. For those reasons, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm on return to Sri Lanka because he was a failed asylum seeker or because he left Sri Lanka illegally or for any Convention related reason.

10. The Tribunal went on to find that, while prison conditions in Sri Lanka were poor, any pain or suffering related to that would not be intentionally inflicted and so did not come within the meaning of significant harm within the Act.

11. For those reasons the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

Ground 1

1. The first ground in the application is that the Tribunal made a legal error in making a finding based on no evidence. This ground relates to the rejection by the Tribunal of the submission made by the applicant’s migration agent in post hearing submissions that the Immigrants and Emigrants Act of Sri Lanka was arbitrarily applied. The submission was supported by reference to material that suggested that there is a disparity in the manner in which the laws applied in the Magistrates Court in Colombo and that in Negombo. In one report it was indicated that fines of around Rs 5000 were given in Colombo whereas fines in Negombo were given up to Rs 50,000.

2. The Tribunal did not accept that submission because, without further information in relation to each case and the factors taken into account in order to arrive at the fine amount, it could not be satisfied that the law was being arbitrarily applied. Rather, it considered that the different fine amounts indicated the exercise of judicial discretion.

3. It is important to note in respect of this ground that the Tribunal did not make any finding of fact to the effect that the difference in fines was because of the exercise of judicial discretion. Rather, it only stated that the difference in fines “indicates” such an exercise of discretion in the absence of further information about each case. Once that is understood, this ground fails at the threshold.

4. In any event, while it may be that to make a finding of fact in the absence of evidence constitutes an error of law that does not necessarily mean that there is a jurisdictional error: see Australian Postal Corporation v D’Rozario (2014) 222 FCR 303 at [16] per Besanko J. Arguably, what is important when jurisdictional error is in issue is whether the Tribunal’s satisfaction was logical or rational and based on findings or inferences of fact supported on logical grounds. One of the findings which based at the Tribunal satisfaction in this case was that any harm suffered by the applicant in connection with his illegal departure from Sri Lanka would be the result of the non-discriminatory enforcement of the law of general application. One of the bases that that in turn was the rejection of the applicant’s migration agent’s submissions that that law was inconsistently applied. However, there was a logical ground for that rejection, namely, that there was no information given in respect of each case and the factors taken into account in order to arrive at the fine imposed on each case. For those additional reasons, this ground is rejected.

Ground 2

1. The second ground in the application is that the Tribunal considered the wrong issue. This ground is based upon the Tribunal’s finding that there was a real chance that the applicant would be arrested the airport brought before a magistrate for bail with the potential to be held in prison for a number of days while waiting for that to occur. The applicant argues however that the Tribunal failed to consider whether the applicant had any family members that could provide surety and participate in proceedings conducted in Sinhala. He also argues that the Tribunal failed to consider whether there was “no standardised proceedings” in respect of the processing of the parties and whether the applicant might suffer serious or significant harm during the application of the proceedings under the Immigrants and Emigrants Act.

2. The first difficulty with this ground is that the Tribunal found that the applicant would be released on bail. Implicit in this finding is that there were family members available to provide surety for bail. Similar reasoning applies to the assertion that the Tribunal did not consider whether the applicant could participate in proceedings conducted in Sinhala. Further, in this respect the applicant faces the difficulty that he did not make the claim that the proceedings would only be conducted in a language that the applicant did not understand. Thus, the Tribunal did not fall into the error suggested by the applicant.

3. There are three difficulties with the second part of the ground, namely that the Tribunal did not consider whether the applicant might be harmed during the application administration of the proceedings. First, insofar as the Tribunal was considering the criterion in sub-s.36(2)(a), its finding that any harm would be the result of the non-discriminatory enforcement of a law of general application dealt conclusively with the issue. That is because the finding meant that there was no Convention-based reason for that harm. In order to satisfy the criterion in sub-s.36(2)(a) a person must not only establish that he faces a well-founded fear of serious harm but also that that serious harm be “for reasons of” one of the five matters mentioned in Article 1A(2) of the Refugees Convention. In the absence of any of those reasons a person cannot be a refugee and cannot satisfy the criterion.

4. Secondly, the Tribunal was not satisfied that returnees are subject to mistreatment while in custody at the airport or in remand. The process of “processing of illegal departees” referred to by the applicant in this ground is coextensive with the circumstances dealt with by the Tribunal in this finding. For that reason, contrary to the applicant’s assertion, the Tribunal did deal with the entirety of the processing of departees.

5. Thirdly, in assessing the applicant against the criterion in the complementary protection regime, the Tribunal found that nothing the applicant faced amounted to significant harm within the meaning of the Act. This, too, dealt with the whole process of “processing departees”.

6. For those reasons the second ground is rejected.

Ground 3

1. The third ground is that the Tribunal made a legal error in misconstruing the complementary protection provisions of degrading treatment or punishment. The applicant relies upon the Tribunal’s findings that there was a risk that the applicant would be arrested and placed in remand for a relatively brief period and that prison conditions were poor due to overcrowding and unsanitary conditions. The applicant argues that the intention to cause harm is the act of detaining illegal departees in such conditions and that there is no duration of time required to satisfy the degrading treatment or punishment provision.

2. The first part of this ground namely that relying upon the intentional infliction of harm is simply inconsistent with the Tribunal’s finding of fact. Intentional infliction of harm requires the existence of an actual subjective intention on the part of the person to bring about the relevant harm by his or her conduct: see SZSPE v Minister for Immigration & Border Protection [2014] FCA 267; SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64; SZTCY v Minister for Immigration & Border Protection [2015] FCCA 85. The Tribunal found that the evidence did not indicate “an intention on the part of the Sri Lankan authorities or anyone to an intentionally inflict pain or suffering or intent to cause extreme humiliation on people while in prison.” That finding was in line with the authorities just mentioned and is inconsistent with the applicant’s contention.

3. The second argument relied upon in this ground appears to rely upon the reasoning of North J in WZAPN v Minister for Immigration & Border Protection [2014] FCA 947. However, not only does that case only relate to the statutory definition of “persecution” under s.91R of the Act and so had nothing to do with the complementary protection criterion, but was also overturned by the High Court in Minister for Immigration & Border Protection v WZAPN (2015) 89 ALJR 639.

4. For those reasons the third ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed with costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 2 July 2015