SZWCV v Minister for Immigration

[2015] FCCA 584

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCV v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 584

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – whether the Tribunal’s findings were open on the facts – complementary protection – 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

Immigrants and Emigrants Act 1949
Migration Act 1958, ss.36(2)(a),36(2)(aa), 424A, 476

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

Applicant: SZWCV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 372 of 2015

Judgment of: Judge Street

Hearing date: 12 March 2015

Date of Last Submission: 12 March 2015

Delivered at: Sydney

Delivered on: 12 March 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms Warner-Knight
Australian Government Solicitor

ORDERS

1. The proceedings be dismissed.

2. The applicant to pay the first respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 372 of 2015

SZWCV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUANL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 22 March 2015.  The application identifies on the return date the Court may hear and determine all interlocutory or filing issues, or may give directions for future conduct of proceedings.  The Court raised with the applicant the concern that the application did not identify any arguable ground of jurisdictional error and, having read the decision of the Tribunal, was minded to consider whether or not the Court should entertain an exercise of its summary disposal powers.

2. The applicant was invited to identify an arguable error in respect of the Tribunal’s decision. He maintained that if he had been given more time, he could have provided more information. In considering the exercise of the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), and 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].

3. The grounds of the application are as follows:

   The RRT has breached its statutory duty imposed by section 424A of the Act as the RRT has failed to put in writing the concerns and adverse information which rose in my review (reasons for refusing my review) and it has failed to invite me for my comments, after the hearing, before it made its decision.

   I will provide further details of this ground and any other ground after a lawyer has been given by this court.

4. In this case the Court identified that the applicant was a citizen of Sri Lanka, and applied for a protection visa on 8 November 2012, which the delegate refused on 15 July 2013. The Tribunal noted that the applicant appeared before the Tribunal on 18 December 2014 to give evidence and present arguments. The Tribunal noted that the applicant was both assisted by an interpreter and the applicant’s representative also attended.

5. The applicant provided a statutory declaration dated 26 October 2012 to the Department as an attachment to his protection visa application, and the Tribunal carefully identified a post-interview written submission to the Department by the applicant on 22 April 2013, identifying his alleged fears of harm from his brother, recruited by the LTTE, and in a written statement dated 7 November 2013 that the fears of persecution advanced by the applicant were his Tamil race, his imputed political opinion, support for the LTTE, and his membership of a particular social group, being a failed asylum seeker and being returned to Sri Lanka.

6. The Tribunal also identified the written submissions provided on behalf of the applicant. The Tribunal found the applicant to be a citizen of Sri Lanka, and assessed the claims with Sri Lanka as the applicant’s receiving country. The Tribunal noted in relation to the credibility of the applicant there were a number of inconsistencies that raised significant concerns about the applicant’s credibility, the reliability of his evidence in relation to critical aspects of his claims. During the hearing the Tribunal raised its concern about the applicant’s credibility, whether he was telling the truth in relation to significant aspects of his claim. The Tribunal found the applicant’s evidence generally vague and unpersuasive. The Tribunal found that some of the applicant’s evidence was inconsistent with his statutory declaration, and some of his claims were implausible.

7. The Tribunal found the applicant’s oral evidence to be inconsistent with the claims recorded in his respect of his brother’s application, and the Tribunal found the applicant is not a witness of truth, and it is not satisfied the applicant has told the truth in relation to critical aspects of his claim.  The Tribunal set out in considerable detail its reasoning in respect of that concern. 

8. The Tribunal identified the first matter in support of that concern, and concluded:

   14. …In isolation, the tribunal would not give much weight to these inconsistency, but in light of the tribunal’s other concerns about the applicant’s credibility and the reliability of his evidence the tribunal considers these inconsistencies reflects poorly on his credibility.

9. In relation to the second matter that the Tribunal carefully set out, the Tribunal concluded:

   15. While the tribunal has taken into consideration the passage of time since the event and the applicant’s nerves in giving evidence, the tribunal is not persuaded by the applicant’s response to the inconsistency between the applicant’s oral evidence and his statutory declaration, and considers this inconsistency reflects poorly on his credibility and the reliability of his evidence.

10. The third matter identified by the Tribunal was carefully discussed, and the alleged concerns expressed by the applicant were found to be implausible.

11. The fourth matter was addressed by the Tribunal in support of its concerns as to the applicant’s credibility, and the Tribunal found:

    17. …The applicant told the tribunal that in Afghanistan he was unable to travel outside the camp freely due to the war. While the tribunal has taken into consideration the applicant’s reasons for leaving Afghanistan and returning to Sri Lanka, the tribunal finds the claim that the applicant would return to the country he had left due to concerns for his safety, in order to have a tooth removed, implausible.

12. The Tribunal addressed the fifth matter that was identified in its support of its concerns of the applicant, and said:

    19. The tribunal considers this inconsistency between the applicant’s oral evidence and his statutory declaration reflects poorly on the applicant’s credibility and the reliability of his evidence.

13. The Tribunal addressed the sixth matter in relation to the applicant’s elder brother, and the Tribunal put information to the applicant in accordance with s.424AA. The Tribunal considered that matter and said it considers the differences between the applicant’s oral evidence and the claims recorded in the decision record relating to his brother raise significant concerns about the applicant’s credibility and the reliability of his claim that his brother was abducted by the LTTE. The Tribunal in para.24 said:

    24. As noted above the tribunal finds the applicant is not a witness of truth and it is concerned that the applicant has embellished and fabricated aspects of his claims in order to support his application.

14. The Tribunal did not accept the applicant’s brother was ever abducted or recruited by the LTTE.  The Tribunal did not accept the approaches alleged by the applicant, or that he was targeted.  The Tribunal did not accept the applicant’s alleged fear for his safety when he returned to Sri Lanka in 2010.  The Tribunal did not accept that applicant had lived in hiding prior to leaving for Australia in 2012.  The Tribunal did not accept the applicant’s claims in relation to his brother, and the Tribunal found there is no real chance that he would be harmed because of the reasons advanced by the applicant. 

    38. …The tribunal is not satisfied the applicant has told the truth in relation to critical aspects of his claims, and on the evidence before it the tribunal is not satisfied that there is a real chance the applicant would face forced recruitment from the Karuna Group or Pillayan Group on his return to Sri Lanka.

15. The Tribunal carefully addressed the application in Sri Lanka of the Immigrants and Emigrants Act 1949, which it found is a law of general application and was not applied in a discriminatory or arbitrary manner, and materially it was not applied for one of the five Convention reasons. 

16. The Tribunal concluded it is not satisfied that there is a real chance that the applicant would be persecuted on return to Sri Lanka because he is a Tamil, a failed asylum seeker, or because he left Sri Lanka illegally.  The Tribunal made a series of findings at paragraph 49:

    49. Having considered all the evidence and submissions before it, and the applicant’s personal circumstances, both individually and cumulatively, the tribunal makes the following findings:

    • The tribunal finds the applicant is not a witness of truth and it is not satisfied he has told the truth in relation to critical aspects of his claims.

    •  The tribunal does not accept the applicant's brother Nimal was ever abducted or recruited by the LTTE.

    •  While the tribunal accepts that the applicant’s family may have been approached in the past a number of times by paramilitary groups, the tribunal does not accept these approaches were very numerous or targeted at the applicant in particular.

    •  The tribunal does not accept that towards the end of 2007, while riding his bicycle in his village, the applicant was called over by two men in a white van and told if he ran away they would kill him.

    •  The tribunal does not accept that the applicant had fears for his safety when he returned to Sri Lanka in 2010 for a tooth extraction.

    •  The tribunal does not accept that the applicant’s family home continued to be visited and his family members questioned about the applicant’s or his brother’s whereabouts by paramilitary groups, because of any suspected links with the LTTE due to his brother’s earlier abduction.

    •  The tribunal does not accept that the applicant lived in hiding prior to leaving for Australia in 2012. 

    •  The tribunal does not accept that the applicant’s father was abducted while on his bicycle by a paramilitary group, or kept in the van for hours before being thrown out injuring his ankle.

    •  The tribunal does not accept that the PTA is being used in a systemic discriminatory manner against Tamils or that Tamils are at risk of serious harm on the basis of their ethnicity alone or because they are young Tamil males, or young Tamil males from a particular part of Sri Lanka(i.e. an area previously controlled by the LTTE, or originating from the East).

    •  The tribunal does not accept that the applicant has, or would be perceived or imputed as having links to the LTTE, or as being opposed to the government of Sri Lanka, or that he has or would be perceived or imputed as having links to the LTTE, or as being opposed to the government of Sri Lanka because of his brother. Therefore the tribunal finds there is not a real chance that he would be harmed because of those reasons.

    •  The tribunal is not satisfied that there is a real chance the applicant would face forced recruitment from the Karina Group or Pillayan Group on his return to Sri Lanka.

    •  The tribunal does not accept that the applicant has a profile as having links to the LTTE or any adverse political profile or imputed profile.

    •  While the tribunal considers there is a real chance the applicant will be arrested at the airport and may be held for a number of days in prison to await a bail application hearing, the tribunal finds that this will be the result of the non-discriminatory enforcement of a law of general application. The tribunal does not accept that the I&E Act is applied as an aspect of a broader convention related campaign, or that one or more of the five convention reasons would be the essential or significant reasons for applying that law.

    •  While the tribunal accepts that prison conditions in Sri Lanka are poor, the tribunal does not accept that one or more of the five convention reasons would be the essential and significant reason or reasons for the applicant experiencing those conditions, as required by s.91R(1)(a).

    •  The tribunal finds the chance of the applicant being detained for a prolonged period of time as a penalty for illegal departure is remote.

17. The Tribunal relevantly concluded:

    50. On the evidence before it the tribunal does not accept that there is a real chance the applicant will suffer persecution or be killed, tortured, kidnapped, physically abused or seriously harmed by the paramilitary groups such as Karuna Group or Pillayan Group or the Sri Lankan army or Government or authorities on his return to Sri Lanka. The tribunal does not accept that there is a real chance the applicant will be handed over to the Karuna group on his return to Sri Lanka. The tribunal notes the applicant’s oral evidence that his parents and sisters continue to live in Sri Lanka, and that his elder brother [T], recently returned to Sri Lanka to live with his wife and child. The tribunal notes that the applicant has previously found employment in Sri Lanka, Qatar, Afghanistan and Australia and on the evidence before it the tribunal is not satisfied there is a real chance the applicant will be seriously discriminated against in Sri Lanka, threatening his ability to subsist.

    51. Having considered all the evidence and submissions before it, and the applicant’s personal circumstances, both individually and cumulatively, the tribunal is not satisfied there is a real chance the applicant will be persecuted on return to Sri Lanka for the reasons he has claimed.

18. The Tribunal turned to the complementary protection provision consideration and found it was not satisfied there is a real risk the applicant would suffer harm on return to Sri Lanka for the reasons he has claimed. 

19. The Tribunal found that it was not satisfied there are substantial grounds, either individually or cumulatively, for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk the applicant would suffer significant harm. The Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations, and that the applicant did not satisfy the criteria under s.36(2)(a) or 36(2)(aa).

20. There is no substance in the ground advanced by the applicant in respect of s.424A as there is no requirement for the Tribunal to put to the applicant the country information pursuant to s.424A(3)(a). Further, it’s clear that the Tribunal was not required under s.424A to put to the applicant its assessment of the applicant’s credibility. There was no relevant failure to comply with the statutory criteria.  The ground raised in the application is doomed to failure  Having taken into account the findings of the Tribunal and absence of any jurisdictional error, there is no utility in granting any adjournment as it would only unnecessarily increase the costs to the parties in proceedings that 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 (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 March 2015