SZWCG v Minister for Immigration

[2015] FCCA 527

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 527

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – procedural fairness – whether the Tribunal had failed to put adverse findings to the applicant.

PRATICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Immigration Emigration Act 1949, (Sri Lanka)
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: SZWCG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 340 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 Krishnan

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Proceedings be summarily dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $595.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 340 of 2015

SZWCG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958, in respect of which the applicant is seeking to challenge a decision of the Tribunal delivered on 13 January 2015, affirming a decision not to grant a Protection (class XA) visa. 

2. The applicant applied for the protection visa on 7 November 2012, and the delegate refused to grant the visa on 17 July 2013, and a hearing was conducted at which evidence and arguments were presented before the Tribunal on 18 December 2014. 

3. In the application filed, the following grounds were set out:

   1. A failure to deal with my claim I had made failing to comply with procedural rules. RRT did not put all adverse information to me for my response.   

4. The application records that:

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

5. Having looked at the application and the decision, the Court raised with the applicant the concern that the proceedings appeared deficient for failing to identify any proper jurisdictional error, and that the Court was minded to consider summarily dismissing the matter. 

6. The applicant informed the Court that he had put to the Tribunal the matters as to why he was entitled to a visa, and those submissions developed identifying a jurisdictional error. 

7. In considering the exercise of the Court’s summary dismissal powers, 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], those powers conferred by s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001).

8. In this case, the Tribunal carefully identified the applicant’s claims, and took into account the information provided at the hearing on 18 December 2014, at which the applicant also had present a representative.  There were also written submissions provided to the Tribunal on the applicant’s behalf, which were carefully considered. 

9. The applicant identified the reasons for his claims to a protection visa, and the grounds upon which he allegedly held a genuine fear of persecution.  The Tribunal identified that it had a number of difficulties with the applicant’s evidence, having set out what occurred before the Tribunal in relation to the respective claims.  The Tribunal said:

   46. Nevertheless, the number of the inconsistencies and credibility concerns cause the Tribunal to be unable to be satisfied with any substantive details of the applicant’s claim. The Tribunal does not consider that the applicant has been a witness of truth. 

10. After further consideration, the Tribunal concluded:

    52. For all these reasons, in addition to the credibility concerns in relation to the applicant’s evidence already mentioned, the Tribunal is not satisfied that the applicant’s wife has been abducted.

    53. The Tribunal is satisfied that the applicant is a citizen of Sri Lanka and is a Tamil and a Hindu. The Tribunal is satisfied that the applicant left Sri Lanka unlawfully by boat in June 2012. 

11. The Tribunal found that it was not satisfied that the applicant, at the time he left Sri Lanka for Australia in June 2012, was of interest to authorities, or had adverse profile of a nature likely to give rise to any real chance of harm within s.91R or s.36(2)(a).  The Tribunal considered carefully country information in relation to the Tamil race.  The Tribunal said it is not satisfied that the applicant faces real chance of serious harm in connection with his Tamil ethnicity and political association in the reasonably foreseeable future. 

12. The Tribunal turned to consider issues concerning the applicant’s political opinion, and the Tribunal held:

    74. The Tribunal is not satisfied that there is any evidence that establishes that the applicant will be perceived to hold anti-government or pro-LTTE of a nature that would put him at a risk of serious harm. As noted, the applicant has no links himself or though his family to the LTTE. The Tribunal has not been satisfied of the applicant’s claims that he and his wife were questioned at an army camp, or have subsequently been pursued by the CID or questioned by the police or that his wife has disappeared. The Tribunal does not consider that the applicant would be perceived to have a significant role in relation to post-conflict separatism, in terms of the risk categories set out in the decision of the United Kingdom Upper Tribunal referred to.

    75. Based on all the evidence before it, including evidence provided by the applicant’s adviser, the Tribunal is not satisfied that the applicant has or will have any actual or imputed political opinions or profile which would give rise to a real chance of serious harm in Sri Lanka in the reasonably foreseeable future.

13. The Tribunal turned to consider the issues concerning a failed asylum seeker, and the Tribunal concluded:

    95. The Tribunal is not satisfied on the information before it that the process that the applicant faces on return to Sri Lanka is in place to persecute Tamils, undocumented arrivals, suspected LTTE supporters, failed asylum seekers, or any other particular social group.

    …

    97. …the Tribunal is not satisfied that there would be the imputation of a link which creates a real chance of serious harm from questioning or treatment at the airport on return.

14. The Tribunal assessed the risk to the applicant as a result of him being a failed asylum seeker was less than a real chance, and the Tribunal found:

    100. …the Tribunal is not satisfied that the evidence gives rise to the applicant facing differential treatment for a Convention reason or reveals a real chance of persecution involving serious harm in connection with the applicant’s unsuccessful application for asylum now or in the reasonably foreseeable future.

15. The Tribunal carefully identified the application of the Immigration Emigration Act 1949 (Sri Lanka) as a general law which was not applied discriminatorily or arbitrarily.  The Tribunal concluded:

    109. The Tribunal does not accept that one or more of the five Convention reasons, including membership of a particular social group of those who have departed Sri Lanka illegally, will be the essential and significant reason for the applicant spending up to a fortnight in jail on remand and fined if he returns to Sri Lanka, as required by s. 91R(1)(a) of the Migration Act.

    113. The Tribunal has determined each of the applicant’s claims relating to the Refugees Convention and concluded that under none of these claims does the applicant face a real chance of serious harm, or otherwise satisfy the requirements of s.91R(1), for any of the reasons claimed or arising on the evidence. The Tribunal also considers the applicant’s claims cumulatively and in doing so finds that based on all the evidence before it, including the applicant’s claimed past circumstances, and what is accepted of his current personal and family circumstances and profile in Sri Lanka, the Tribunal is not satisfied that the applicant faces a real chance of serious harm, or otherwise satisfy the requirements of s.91R(1), for any of the reasons claimed, or cumulatively, or arising on the evidence. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future and that the Tribunal is not satisfied that the applicant is a refugee under s.36(2)(a) of the Act.

16. The Tribunal turned to consider the issue of complementary protection and relevantly said, for the same reasons the Tribunal considered:

    116. …For the same reasons the Tribunal also considers that the applicant does not face a real risk of suffering significant harm should he be returned to Sri Lanka based on his race.

17. The Tribunal also observed that:

    118. As already discussed, the Tribunal does not consider that the applicant will be imputed with a political opinion of association to the LTTE that would put him at a real chance of serious harm, and for the same reasons does not consider that the applicant will be imputed with a political opinion that would give rise to a real risk of significant harm now or in the reasonably foreseeable future.

18. The Tribunal continued its analysis and concluded:

    121. The Tribunal does not accept therefore that there are 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 risk that he will suffer significant harm as a consequence of the poor conditions in prison due to overcrowding.

    …

    123. Considering the applicant’s claims in their entirety, both singularly and cumulatively, the Tribunal is not satisfied that the applicant faces a real risk of treatment amounting to significant harm as contemplated by s.36(2A) of the Act. The Tribunal is not satisfied on the information before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, he faces a real risk of: being arbitrarily deprived of his life; the death penalty being carried out on him; being subject to torture; being subject to cruel or inhuman treatment or punishment; or being subject to degrading treatment or punishment for any reason claimed or arising on the evidence.

    124. For the reasons given above, the Tribunal is not 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).

    125. 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).

    126. 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).

19. It is clear from the reasons of the Tribunal that it dealt carefully with the applicant’s claims, and complied with the statutory criteria for the conduct of the review in accordance with both the legislation and the principles of procedural fairness.  It was a matter for the Tribunal to determine the issues of fact and the reasons properly set out the basis for the findings of the Tribunal that were open to the Tribunal. 

20. It’s also clear from the reasons that the Tribunal did put to the applicant clear particulars of the information that the Tribunal considered would be the reason, or part of a reason, for affirming the decision that was under review.  It was not necessarily for the Tribunal to put to the applicant its reasoning process. 

21. I am completely satisfied that there is no substance in the grounds identified in the application, and 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 twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 March 2015