SZWCW v Minister for Immigration

[2015] FCCA 596

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 596

Catchwords:
MIGRATION – Refugee Review Tribunal – procedural fairness – no jurisdictional error.

PRACTICE 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, ss.36(2), 424A(3)(a), 476

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

Applicant: SZWCW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 378 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 F. Taah
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 378 of 2015

SZWCW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitution writ within the Court’s jurisdiction under s.476 of the Migration Act 1958, in respect of a decision of the Tribunal delivered on 30 January 2015. 

2. The application records on its face on the return date:

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

3. The Court, having looked at the application and read the decision of the Tribunal, was concerned that the application failed to disclose an arguable case, and that the matter appeared appropriate to consider whether the Court should exercise its summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001). 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].

4. The grounds of the application in this case are as follows:

   The RRT has breached its statutory duty imposed by section 424A of the Act as

   1. the RRT has failed to put in writing the concerns and adverse information which arose in my review (reasons for refusing my review).

   2. The consistencies arose during the and after the RRT hearing before it made its decision.

   3. I have evidence to prove that my claims are credible and the RRT has failed to invite me to provide the evidence after the hearing.

   The RRT has failed to invite me for my comments in respect of the above matters (1, 2 and 3), 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.

5. When the Court raised the concern with the applicant as to the failure of the application to identify an error within this Court’s jurisdiction, the applicant said:

   There is no error of law, but the case is I will face problems if I go back to my country. 

6. When asked whether there was anything further the applicant could put, the applicant said:

   Only the fear I’m having about going back to my country.

7. It is clear in this case that the Tribunal put to the applicant its concerns at the hearing in relation to the applicant’s evidence. To the extent relevant, s.424A(3)(a) makes clear that the Tribunal is not required to put the country information to the applicant, nor is the Tribunal required under s.424A to identify its assessment of the applicant’s credibility.

8. There is no substance in the allegation of a breach of s.424A of the Migration Act, as asserted in the grounds of the application.  Further, there is no utility in providing the applicant with any further time to provide additional grounds, as the delay will only incur further costs, and utilise further Court hearing time, in circumstances where the court is clearly satisfied the proceedings are doomed to failure. 

9. The applicant applied for a protection visa on 29 November 2012 and the delegate refused to grant the visa.  On 17 February 2014, the applicant appeared before the Tribunal at a hearing on 27 January 2015 to give evidence and present arguments.  The applicant was assisted by an interpreter, as well as being represented by a registered migration agent.  The Tribunal carefully identified the legal requirements in relation to the grant of a protection visa, and identified that the applicant was a Sinhalese citizen of Sri Lanka and that his claims should be addressed with that country as the country of reference. 

10. The Tribunal carefully identified the applicant’s alleged claims of fear of persecution:

    10. The issue in this case is that the applicant, a Sinhalese citizen of Sri Lanka claimed to holds a well-founded of serious harm in Sri Lanka because of an arrangement with an agent who stole his and four friends’ travel expenses to Cyprus. He claimed that he was at risk because he had encouraged four friends to use this agent and they now hold him responsible for their loss. He claims that they will physically harm him in an act of revenge should he return to Sri Lanka.

11. The applicant identified how his friends came to see him, and he introduced them to the travel agent.  The Tribunal referred to the delegate’s interview of the applicant. The Tribunal addressed what had occurred before the delegate as follows:

    28. He said that, on one occasions his friends had hit him and, he told the delegate that this situation regarding the agent and the money was the reason that he had left Sri Lanka and that there was no other problem than this.

    29. The delegate asked the applicant why, if this was the case, he had not raised it at his entry interview and the applicant said that he had not done so as he had left his wife in Sri Lanka and he was afraid to raise it. He later said that he had been afraid as people who came with him had advised him that this may be a reason for the authorities to refuse him but later he had discussed it with his representative who had told him to tell the truth so he had told the whole situation.

    30. The applicant also claimed that his wife had been visited by the wives of the four men and that they had beaten his wife.

    31. The delegate found the applicant not to be a credible witness and found that it was not plausible that the applicant would enter into the arrangement with the agent without knowing basic information such as her name. Further, the delegate found it implausible that the applicant’s uncle would suggest the applicant engage in the transactions with the agent unless he was aware of basic information such as the agent’s name.

    32. Furthermore, the delegate did not accept the applicant’s reasons for failing to disclose this as being his reason for leaving Sri Lanka. The delegate found the applicant had several opportunities in the course of the entry interview to outline the claimed threats but he had not done so.

    33. The delegate found the account had been fabricated.

    34. He delegate found that there was no Convention Ground as the essential and significant reason for any harm.

12. The Tribunal noted the adviser’s submission of 7 December 2014, seeking to address the applicant’s credibility in relation to the claim regarding the travel agent and the four friends and the applicant having trouble identifying what occurred. At the hearing the Tribunal put to the applicant its concerns at para.86:

    86. I put the applicant that the difficulties I had accepting his account in respect of the failed travel plans was that, in his first interview with the department he had been asked what his reasons for coming to Australia were and he had only given economic reasons.

13. The Tribunal also raised further issue it had with the applicant’s credibility, as identified in para.88:

    88. I added that, another issue I had was that, although he did raise the issue of his four friends and that they were the ones he was afraid of in Sri Lanka that in his statutory declaration through his representative of 19 November 2012 there was no mention of them having any political links or association. This was referred to in a submission dated 7 December 2014.

14. The Tribunal noted that it had asked the applicant if the situation with his friends was his only reason for leaving Sri Lanka and he confirmed that it was. 

15. The issue of the applicant having left Sri Lanka illegally and potentially being a failed asylum seeker was raised, and the Court identified the general application of the Sri Lankan law that applied to all citizens in respect of illegal departure. 

16. The Tribunal put its concerns in relation to the credibility of the applicant at para 102:

    102. I put to the adviser that issues of concern were;

    (a) That no mention of the claimed incident in regard to the four former friends had been made to the department prior to the statutory declaration of December 2012. Further that no mention had been made of any political involvement of the four people in that statutory declaration.

    (b) The nature of his friends and the claims that they were politically linked indicated that their profile was extremely low in that regard.

    (c) The nature of the harm he claimed to fear.

    (d) The applicant’s potential to relocate to another area in Sri Lanka.

    (e) The material that I had put in regard to penalties for illegal departure.

17. The Tribunal addressed the applicant’s failure to seek assistance from the police, upon which the Tribunal carefully summarised the applicant’s claims, and turned to the issue of the applicant’s credibility.  The Tribunal found:

    134. Firstly, I find that the applicant’s failure to make the claim that he feared harm at the hands of fours former friends when first asked was not because of a state of exhaustion, uncertainty or any of the reasons the applicant has given. As the delegate put to him, he was given several opportunities to make the claim that he left because of a real chance of harm from his friends, if that was the case.

    135. I have taken into account the applicant’s lack of awareness of Australia’s Immigration system, his legal rights and other issues. However, I am satisfied that any person, regardless of education levels, cultural background or legal understanding would be able to articulate the main reason or reasons for leaving one’s home and country and leaving immediate family members behind.

18. Materially, the Tribunal found in paragraph 141:

    141. I am of the view, under these circumstances that this has been added to embellish a claim which, itself had not been made when he was first asked his reason for coming to Australia.

19. Following this, the Tribunal found:

    147. Since I do not accept this claim to be a fact it follows that I do not accept his claims to be at risk of being falsely accused of defrauding his friends or any other claimed consequential harm.

    148. I do, however, accept that the applicant has left the country illegally and that he is a failed asylum seeker.

    149. The submission of 7 December 2014 claims that there is a Convention nexus as a member of a particular social group of ;

    (a) Member of a particular social group of failed asylum seekers returning from a western country; or

    (b) Member of a particular social group of persons targeted by politically connected influential people.

    150. I have already discussed the situation in regard to his former friends’ political association and find that claim has been fabricated and give it no weight. Therefore, it follows that I find he is not a member of a particular social group of persons targeted by politically connected influential people.

20. The Tribunal carefully identified the general application of the Immigrants and Emigrants Act 1949 as a law of general application that was not applied exclusitorily or arbitrarily. 

21. The Tribunal found that it was satisfied that a failed asylum seeker, who left the country illegally, will not face anything more serious than a careful and close check of his details, but that does not amount to serious harm.  The Tribunal found that the applicant faces no real chance of serious harm as a consequence of his status as a failed asylum seeker.  In that regard, the Tribunal found as follows:

    170. I am satisfied that, under Sri Lanka’s Immigration and Emigration Act, the applicant will be charged for illegal departure and, on the evidence before me, find that this would apply equally to both Sinhalese and Tamils. I am satisfied, based on the evidence before me that it will be applied as a law of general application and not as a consequence of targeting for any other reason.

    176. However, having taken account of s.91R of the Act and, in particular s.91R(2) I find that the circumstances of the applicant being held for up to two weeks pending an appearance before a magistrate do not reach the level of gravitas as described in the examples of s.91R(2) such as to amount to serious harm.

    180. Having considered the applicant’s situation and the extent of consequences of a return to Sri Lanka I am not satisfied that the applicant faces serious harm now or in the reasonably foreseeable future for reasons of illegal departure, being a failed asylum seeker or his return in either or both of those categories singly or cumulatively whether or not any combination comprises a particular social group.

    181. This being the case, I find that the applicant does not meet the criteria of s,36(2)(a) and he is not a refugee.

22. It is clear on those findings that the applicant is not a refugee to whom Australia owed a protection obligation.  The Tribunal continued to address the issue raised by complementary protection:

    194. Having considered all aspects of the applicant’s circumstances in Sri Lanka I find there are not substantial grounds for me to believe that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka as the receiving country there is a real risk of significant harm.

    195. 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).

    196. 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).

    197. 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).

23. It is clear that the issue raised by the applicant for leaving Sri Lanka was not a genuine fear of persecution for a convention reason.  It is also clear that serious adverse findings of credit were made in relation to the applicant in respect of his claims, and that the applicant was given proper opportunity to present his claims, and had the benefit of a genuine hearing. 

24. I am satisfied that the Tribunal complied with its statutory review obligations, and that there is no substance in the alleged grounds, and that there was no jurisdictional error by the Tribunal in the conduct of its review. 

25. I am satisfied that the grounds seek to engage in an impermissible challenge to the findings of fact by the Tribunal.  I am satisfied that those findings of fact were clearly open, and it cannot be said that those findings lack an evident and intelligible justification. 

26. I am satisfied that in these circumstances the proceedings are clearly doomed to failure, I am clearly satisfied the proceedings have no reasonable prospect of success, and the proceedings are summarily dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 March 2015