SZWCD v Minister for Immigration
[2015] FCCA 526
•5 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWCD v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 526 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Federal Circuit Court Act 1999, s.17A |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 MZPAO v Minister for Immigration & Anor [2015] FCA 96 SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2 WZAPNv Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | SZWCD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 332 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: | Mr Speirs |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The proceedings be summarily dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $1367.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 332 of 2015
| SZWCD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application of the Court within the Court’s jurisdiction under s.476 of the Migration Act1958 in respect of which the applicant is seeking a Constitutional writ in respect of a decision of the Tribunal delivered on 22 January 2015. The grounds of the application are as follows:
1. When deciding that cruel or inhumane 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.
2. In WZPAN v MIBP, the Federal Court held that even a short period of detention that threatens an applicant’s liberty will fall within the scope of s.91R(2)(a). Therefore, this case law interprets that s.91R(2)(a) was not correctly applied by the RRT in the case.
In relation to the return date on the application it is recorded:
The Court may hear and determine all interlocutory or final issues or may give directions for future conduct of the proceedings.
The Court indicated to the applicant that, having looked at the grounds and having read the reasons, there did not appear to be an arguable jurisdictional error and that the Court was minded to consider whether the proceedings should be summarily dismissed. The applicant identified that if he’s returned to Sri Lanka he may be put into jail for two weeks. In response to the invitation to do so there was no other ground or argument advanced as to why there was an arguable jurisdictional error.
In considering application of the summary dismissal powers in s.17A and r.13.0, I take into account the caution and principles in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, particularly at paras.[24- [25] and [59]-[60]. The applicant applied for a protection visa on 27 November 2012 and on 15 July 2013 the delegate refused the grant of a Protection (class XA) visa. The Tribunal carefully identified the claims of the applicant and accepted that he was a national of Sri Lanka and that that was the relevant country of reference.
In this case the Tribunal relevantly found:
46. The tribunal finds the applicant has fabricated his claims and does not accept that faces any real chance of harm from these four or five Singhalese men as claimed. The tribunal does not accept the applicant faces any harm from Singhalese men as claimed.
The Tribunal carefully identified and considered the applicant’s claims and in relation to the applicant’s credibility relevantly said:
20. …The tribunal does not accept the father or applicant was subject to harm or harassment or discrimination related to their fishing at the end of the war.
…
Based on the country information and evidence before the tribunal does not accept that the applicant faces a real chance of serious harm as a result of fishing license.
The Tribunal pointed out to the applicant the unsatisfactory nature of his evidence and the Tribunal found that the applicant was making up his story in response to the Tribunal’s concerns. The Tribunal identified a number of examples of its concerns of unsatisfactory response in respect of the credibility of the applicant. The claim relating to electrical sabotage was one where the Tribunal found the applicant’s account about the incident lacked credibility in a number of respects.
The Tribunal did not accept the applicant’s claims about the electrical fire and that the men caused a fire or sabotaged wires or tried to kill him or that there was a fire on the farm. In relation to claims in respect of being chased four or five times, the Tribunal found that that lacked credibility. Relevantly, the Tribunal said:
38. …The tribunal considers the applicant was changing his evidence in response to tribunal concerns at the obvious opportunity of an unattended prawn farm.
The Tribunal held it did not accept his explanation and finds it unconvincing and lacking in credibility and sense.
In relation to alleged claims concerning visits to his house and an attack in the street the Tribunal relevantly said:
44. …The tribunal considers the applicant was making up his explanation as he went along.
In para.[45] the Tribunal said:
45. Given the applicant’s vague evidence, that some key events were not mentioned until late in the application process, some were inconsistent and his changing evidence in response to tribunal concerns and that his story lacked credibility in a number of respects the tribunal does not accept he was recounting event from his memory and does not accept he was telling the truth. The tribunal does not accept he saw men stealing prawns from the farm, or that men chased him at the farm, in the street or were looking for him at his house. The tribunal does not accept he or his father were threatened or assaulted or harmed in any way. The tribunal does not accept the men started an electrical fire or that they tried to kill him.
46. The tribunal finds the applicant has fabricated his claims and does not accept that faces any real chance of harm from these four or five Sinhalese men as claimed. The tribunal does not accept the applicant faces any harm from Sinhalese men as claimed.
The Tribunal turned to consider whether there was a well-founded fear of persecution and in that regard whether potential remand or custody of the applicant upon being returned to Sri Lanka, including a reference to WZAPNv Minister for Immigration and Border Protection [2014] FCA 947, was expressly referred to by the agent in submissions on behalf of the applicant but identified by the Tribunal at in its reasons.
The Tribunal found:
53. The Tribunal acknowledges the agent about the DFAT reports. However the tribunal is satisfied that the DFAT are compiled with the greatest degree of scrutiny of information, independence and verification with adequate research and a great degree of accuracy. The Tribunal is also mindful that the DFAT report is considerably more recent and more detailed than many of the reports on which the applicant relies and gives the former more weight.
The Tribunal found that the applicant’s fear of harm upon return to Sri Lanka because of his Tamil ethnicity was not well-founded. The Tribunal rejected the claims of harassment of unidentified Sinhalese men when he worked on a farm as the Tribunal did not find the claims credible.
The Tribunal found the applicant’s claim to fear on return to Sri Lanka because of his Tamil ethnicity was not well-founded. The Tribunal did not accept that the applicant was at risk because of an imputed political opinion.
In relation to the application of the Immigrants & Emigrants Act materially the Tribunal said:
70. …The information indicates that all Sri Lankan nationals are treated in the same manner with regard to entry procedures into Sri Lanka.
…
73. …based on the country information, the tribunal does not accept the applicant faces any mistreatment or serious harm upon initial screening or questioning or that he faces any criminal penalties. Further, the tribunal does not accept being questioned to establish identity, criminal record and bail amounts to serious harm. The tribunal does not accept he faces any chance of harm even as part of the questioning process.
75. The tribunal has considered the applicant’s circumstances but does not accept that there is a real chance the applicant will be suspected by the authorities as someone with links or associations with the LTTE or anti-government on return to Sri Lanka. As such the tribunal does not accept that he faces a custodial sentence, any harm upon questioning upon on arrival or that he faces a real chance of further questioning upon return to his home. The tribunal does not accept the applicant has a profile that may put him at risk. In any event the tribunal does not accept, even if he is questioned at home that such questioning or reporting amounts to serious harm.
The Tribunal identified the reference to the potential for a fine and said:
76. …The Tribunal is satisfied that the chance that he will be subjected to detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT country report is remote.
The Tribunal carefully addressed the question of illegal departure and relevantly said:
77. The tribunal accepts the applicant departed illegally by boat and accepts he may be charged for illegal departure under the IE Act. The tribunal accepts there are criminal penalties for illegal departure but does not accept the applicant faces a real chance of persecution.
…
81. Based on the country information and the applicant’s circumstance the tribunal does not accept the applicant faces a real chance of harassment, serious harm or criminal penalty or any harm upon arrival in Sri Lanka or during the questioning process to establish identity and bail.
The Tribunal found that the chance of the applicant being detained on remand for more than a couple of days was speculative and remote.
In para.[84] the Tribunal said:
84. The agent relied on the decision in WZAPN and submitted any detention, even the briefest period on remand, amounted to deprivation of liberty and therefore serious harm. The agent argued the illegal departure laws should not be considered laws of general application because they were applied discriminately and were harsh such that they did not meet the legitimate object test.
The Tribunal then continued to address the submission advanced in relation to WZPAN and the reasons distinguishing that case from the circumstances before the Tribunal. Materially the Tribunal found the laws were of general application and were not laws that constituted persecution or were applied for a convention reason and found that they were not laws that were discriminatory or arbitrarily applied.
The Tribunal addressed this matter in para.[85]-[87] as follows:
85. The Tribunal has had regard to the agent submissions. However, the tribunal finds that the Sri Lanka departure laws are laws of general application and therefore the enforcement of the laws do not constituted persecution but prosecution. The tribunal does not accept that the I&EA provisions that deal with breach of the departure laws from Sri Lanka are discriminatory on their face, or disclose discriminatory intent. The country information indicates the Sri Lankan departure laws are applied regardless of ethnicity to all persons who are returnees and are not applied in a way that is discriminatory or selectively enforced against a particular group of those returnees. The agent’s argument that they do not apply to persons who depart legally is misguided as the laws apply to persons who departed illegally, not to persons who depart legally. There is no discrimination in that distinction but an legitimate object to deter people from departing illegally and encourage them to depart legally.
86. The tribunal does not accept the level of the fine makes the laws discriminatory or unreasonable. The country information is that the fines range from 5,000 to 50,000 and surety and have time to pay them off. The tribunal finds the most the applicant would have to pay for the fine is 50,000 rupees. The tribunal does not accept the applicant could not pay such a fine as he has found the money to allow him to travel by boat to Australia and has a good job in Australia earning $650 a week and there is no reason he could not return to employment in Sri Lanka as he has previous work experience, having earned 7000 a month. Further his family could also assist him as they have income and own their own home.
87. The tribunal finds that the application of the breach of departure laws in Sri Lanka to the applicant will be the enforcement of a law of general application and not of itself persecution for a Convention reason. Any harm the applicant may suffer arising from punishment for an offence under the IEA has no element of persecution for the purpose of s.91R(1)(c) and therefore is not persecution. The tribunal does not accept that detention upon remand for a couple of days or hours is set out of proportion or beyond the legitimate object (to establish identity and deter illegal departees by imposition of a fine) of the illegal departure laws. The Tribunal does not accept that his prosecution for breach of Sri Lankan migration laws amounts to persecution.
The Tribunal found that it does not accept the applicant faces a real chance of being detained or otherwise being targeted for harm by authorities at any time after his release from questioning on his return to Sri Lanka because he is identified as a failed asylum seeker, illegal departee, imputed with pro‑LTTE or anti‑government political opinion or as a Tamil or for any other reason.
The Tribunal said:
89. Based on the applicant’s profile and country information, it found the applicant would not face a real chance of torture, mistreatment during questioning or if he was held on remand.
90. Even if the Tribunal said that if the applicant were held on remand for a short period, the Tribunal does not accept the applicant will be treated any differently because he left Sri Lanka illegally and considers that questioning at the airport, and the possibility of being in remand for a short period and charged is not because he is a Tamil, but because he left Sri Lanka illegally. The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges or uncomfortable unsanitary conditions in remand are aimed at the applicant for any Convention reason. The Tribunal considers that these are factors which apply generally and not specifically to Tamils. The Tribunal is not satisfied that the questioning, arrest and poor conditions in remand and the application of a penalty for illegal departure amount to systematic and discriminatory conduct, as required by s.91R(1)(c).
91. …The Tribunal does not accept he will be abducted or disappeared upon return to Sri Lanka. Having considered the independent evidence and the applicant’s personal circumstances, the Tribunal is not satisfied there is a real chance that he would suffer serious harm amounting to persecution on arrival in Sri Lanka or upon return to his home because he is a Tamil, from the east, a wealthy Tamil, a failed asylum seeker from a western country (or Australia) or because he left Sri Lanka illegally.
Materially, the Tribunal found:
92. …the applicant does not face a well‑founded fear of persecution due to his illegal departure from Sri Lanka: because the laws are not persecution due to a lack of discriminatory intent or application. In any event, the tribunal also finds his being questioned and fined would not amount to any harm so serious as to be serious harm, and there is no real chance he would face a term of imprisonment for the offences.
93. After assessing all the evidence and the applicant’s circumstance and being mindful of both the process and the outcome of the prosecution the applicant will face from the Sri Lankan authorities arising from his illegal departure, the Tribunal is satisfied that the applicant does not face a real chance of serious harm due to his illegal departure, now or in the reasonably foreseeable future if he returns to Sri Lanka.
The Tribunal also considered the claims cumulatively and held:
95. The Tribunal has considered the claims of the applicant individually and cumulatively. For the above reasons, the Tribunal finds the applicant faced no serious harm in the past. The Tribunal is not satisfied the applicant faces a real chance of serious harm upon return to Sri Lanka due to his race, religion, being a failed asylum seeker, political opinion, membership of a particular social group or unlawful departure from Sri Lanka. The Tribunal is not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to Sri Lanka.
The Tribunal then turned to the complementary protection criterion and again addressed in detail the issue of illegal departure and the submissions that were advanced about WZAPN and, relevantly, held:
102. The tribunal has had regard to the agent submissions about WZAPN and the suggestion that detention for briefest period is deprivation of liberty as discussed above. However, the Tribunal considers the only relevant forms of significant harm in the applicant’s case are torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. On the evidence before it, the Tribunal is not satisfied the applicant’s questioning at the airport, bail process or conditions, detention on remand, or fine or possible contact or monitoring visits constitute significant harm. The Tribunal is not satisfied that during any questioning at the airport, bail condition, possible detention on remand or subsequent contact or monitoring visit that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment.
103. The tribunal has also considered the poor prison conditions in the possibility if he were on remand for a weekend or up to two weeks but does not accept he faces a real risk of significant harm. On the evidence before it, the tribunal is not satisfied that, there is a real risk that the applicant will suffer intentional inflicted torture, the death penalty or arbitrary deprivation of life. Nor does the Tribunal accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation as required by the definition of ‘degrading treatment or punishment. The tribunal does not consider severe overcrowding and poor insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment. The Tribunal is also not satisfied that the evidence indicates that during a period in remand there is a real risk that the applicant will suffer intentional inflicted torture, the death penalty or arbitrary deprivation of life or punishment involving severe physical pain or suffering.
104. Therefore, the Tribunal is not satisfied any harm arising from the bail conditions, being detained while on remand or fine or subsequent contact visits will amount to significant harm.
105. The Tribunal accepts on the evidence before it that a suspicion of LTTE links may give rise to harsh treatment or torture either on return or at some later time. However, as discussed above, the Tribunal does not accept that the applicant would be suspected of LTTE links because he is a Tamil male who left Sri Lanka illegally, sought asylum in Australia and spent time in Australia, for any other reason. The tribunal does not accept that he is of adverse interest to authorities or will come to such interest on his return.
106. The Tribunal does not accept that this, even considered cumulatively, constitutes significant harm or that there is any real risk that the applicant will suffer significant harm as a Tamil who left Sri Lanka illegally and who has spent time in Australia and applied for asylum in a Western country or Australia.
107. Having carefully considered all of the evidence, the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there is a real risk that he will suffer significant harm in the form of being arbitrarily deprived of his lie, having the death penalty carried out, or being subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. In making this finding, the Tribunal has had careful regard to all of the applicant’s circumstances.
108. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
The Tribunal concluded:
109.…the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugee Convention. Therefore, the applicant does not satisfy the criteria under s. 36(2)(a.
110. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(aa).
It is clear from the reasons of the Tribunal that the applicant is not in a position where he was exposed to arbitrary detention of the kind the subject of the finding in the WZAPN decision. It is clear in relation to the application of s.91R that there are cumulative adverse findings by the Tribunal not the subject of the challenge of the kind identified in the decision of SZWAU v Minister for Immigration and Border Protection & Ors [2015] HCATrans 2. It is further clear that the decision of WZAPN is distinguishable, for the reasons identified in MZPAO v Minister for Immigration & Anor [2015] FCA 96.
I am satisfied that the Tribunal addressed the character of the Immigrants and Emigrants Act and that there was no jurisdictional error of the kind identified in WZAPN. I am satisfied that the Tribunal made no error in relation to s. 91R(2)(a). I am satisfied that the Tribunal properly took into account the applicant’s claims and that the adverse findings were open on the material before the Tribunal. In particular the Tribunal properly took into account the applicant’s claims concerning alleged treatment on being returned to Sri Lanka. I am satisfied that the findings of the Tribunal were open and cannot be said to lack an evident and intelligible justification.
In these circumstances, I am satisfied 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 thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 11 March 2015
4
5