SZWDE v Minister for Immigration
[2015] FCCA 670
•16 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWDE v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 670 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Federal Circuit Court Act 1999, s.17A Federal Circuit Court Rules 2001, r.13.10 Migration Act 1958 ss.36(2)(aa), 476 |
| MZAPO v Minister for Immigration & Anor [2015] FCCA 96 Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28 SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2. |
| Applicant: | SZWDE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 398 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 16 March 2015 |
| Date of Last Submission: | 16 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 16 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar |
| Solicitors for the First Respondent: | Ms K. Hooper DLA Piper |
ORDERS
The proceedings be summarily dismissed.
The Applicant pay First Respondent’s costs fixed in the sum of $3200
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 398 of 2015
| SZWDE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 dated 29 January 2015 affirming the decision of a delegate not to grant the applicant a Protection (Class XA) visa. The application identifies, in respect of 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.
The matter was returnable before the Court on 12 March 2015 and the Court having identified that the application did not appear to disclose an arguable jurisdictional error and, having read the Tribunal’s decision, was intending on the return date to raise the question of whether or not it should consider exercising its powers to summarily dismiss the application. An agent appeared for Mr Kumar of counsel, who identified to the Court that Mr Kumar was not available and could not attend the hearing. The application was filed on 19 February 2015 and the first court date was given some four weeks away.
The Court expects the parties to be in a position to comply with the notification that is on the face of the application so that the Court may hear and determine all issues, or final interlocutory issues, or final issues, or make a direction of the future conduct of the proceedings on that return date. Nonetheless, the Court did grant an adjournment until today to permit Mr Kumar to appear, in order to identify whether or not there were grounds that were reasonably arguable. Mr Kumar, at the commencement of argument identified that he had drawn the grounds based on the decision of the Tribunal and that he had not had the opportunity to go through all the material that might have been before the Tribunal and that he had a desire to do so.
For the reasons I have given above, as well as identified in the careful decision of the Tribunal, the grounds identified in the application are clearly doomed to failure. It is not appropriate for this Court, in relation to applications for a constitutional writ, to permit those proceedings if clearly doomed to failure to remain in the Court’s list. In considering exercise of the Court’s summary jurisdiction 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].
The Court identified that the utility of any adjournment would depend upon there being disclosed an arguable issue as to jurisdictional error that warranted this Court permitting the matter to be the subject of further directions. There is no utility in granting an adjournment in respect of proceedings that on their face are doomed to failure. The nature of the three grounds identified have nothing to do with the obtaining of further evidence. Each of the grounds turn on the face of the Tribunal’s decision:
Ground 1
The Tribunal erred when it found that as person having left the country illegally {RRT at [70]; [74]) the potential lengthy detention prior to sentencing and custodial sentence for illegal departure was law of general application and failed to consider whether such laws were proportionate to the offence and failing to assess for Convention nexus / complementary protection and whether it would amount to “significant harm” (s 36(2A)) or “serious harm” (s 91R(2)) and s 5 of the Migration Act and thereby committed jurisdictional error and / or failed to consider complementary protection for consequences of illegal departure and constructively failed to exercise jurisdiction.
Particulars
(i) The Tribunal accepted that the Applicant would be charged for illegal departure;
(ii) The Tribunal found that the Applicant could be sentenced to custodial sentence;
(iii) The Tribunal found that the condition in prison not to be satisfactory;
(iv) Failed to address whether these constituted “serious harm” pursuant to (s 91R(2)(a) – (c)) of the Act; (s 36(2A)) or “serious harm” under s 5 of the Migration Act. Short term detention for illegal departure was not considered under Complementary protection nexus (or if so was considered generally). The short term detention constitutes “significant harm” pursuant to (s 36(2A)) (a), (d) and (e)) of the Act.
(v) The Tribunal erred in failing to address whether such detention was reasonable and proportionate, only addressing the question that the law was of general application (at [258]).
Ground 2
The Tribunal erred in failing to take into account relevant consideration and / or misdirected its enquiries,
Particulars
(i) The Tribunal failed to consider the family relationship between the Applicant’s brother [K] and his family and disregarded the relationship of family members having connections to LTTE and disregarded the relevant country information (October 2014 DFAT report);
(ii) The misdirected when it considered whether the Tamils generally were ate risk of harm ([66]);
(iii) The Tribunal thereby committed jurisdictional error
Ground 3
The Tribunal committed jurisdictional error (and denied procedural fairness) when it failed to consider the Appellant’s membership of a particular social group a Convention nexus specifically claimed by the Applicant.
(i) The Applicant claimed particular social group with attributes such young Tamil men from North / East of Sri Lanka who left illegally. The Tribunal has not made any assessment of a particular social group claim.
(ii) The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the Applicants’ particular social group did not deal with the particular social group advanced by the Applicant.
Mr Kumar properly, at the commencement of the argument, conceded that ground 1 was doomed to failure and he did not press it. It is not necessary for the Court in that regard to address in detail why ground 1 is doomed to failure, but the concession was properly made given the cumulative findings that were made by the Tribunal under s.91R, consistent with the decision in SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2 and the decision of this Court in MZAPO v Minister for Immigration & Anor [2015] FCCA 96.
In relation to ground 2, Mr Kumar sought to say that the Tribunal had not properly considered the evidence in relation to the fears concerning the brother and the influence of the brother in respect of the applicant’s claims. It is clear from the decision of the Tribunal that close attention was given to the applicant’s claims concerning his brother and that there were real credibility issues in respect of the applicant’s claims concerning his brother. When one goes, in particular, to paragraphs 54, 57 and 59, it is clear that the Tribunal considered and made appropriate findings that were open on the material before the Tribunal in respect of the brother and the applicant’s claims. There is no substance in the assertion of any jurisdictional error in respect of ground 2. Ground 2, is in reality, an attempted challenge to the findings of fact made by the Tribunal, which is not permissible. There was an evident and intelligible justification before the findings made by the Tribunal concerning the applicant’s claims in relation to his brother.
Ground 3 seeks to criticise the decision of the Tribunal because of a reference in para.11 by the Tribunal which properly identifies a claim advanced by the applicant as being a member of a particular social group, which in this case would be a returned failed asylum seeker. That particular social group was, clearly, the subject of an adverse finding by the Tribunal in para. 72. Materially, where it is said:
72. I am not satisfied having regard to the applicant’s claims and the evidence before the Tribunal together with country information as to the applicant’s claims that he has a well founded fear of persecution on the basis of his claims should he return to Sri Lanka either now or in the reasonably foreseeable future. I am not satisfied that the applicant has a real chance of persecutory harm based on his claims that he fears harm because of his Tamil ethnic extraction or because if he returns to Sri Lanka he would be a failed asylum seeker who left illegally and who would be perceived to have imputed political opinions of being pro-LTTE or anti the Sri Lanka government. I am also not satisfied that the applicant has a real chance of persecutory harm on the basis of his claims that he fears harm because of an imputed political opinion based on his support for a particular political candidate in local elections and that he fears harm from Muslim politicians or their supporters on that basis. [emphasis added]
It is True that the Tribunal did not expressly describe the category of failed asylum seeker by reference to the term “being a member of a particular social group” that is used in para.11. However, it is clear, as a matter of the reading of the Tribunal decision as a whole, that it was para.11 in the claim advanced in respect of being a member of a particular social group that was clearly being addressed in para.72. Indeed, there is no other claim that the passage in para.72 could be treated as addressing in its reference to a failed asylum seeker.
In those circumstances, there is no substance in ground 3 and it is doomed to failure. The Tribunal, identified that the applicant, and his claims. The applicant applied for a protection visa on 21 March 2013. The delegate refused to grant the visa on 18 September 2013.
The applicant applied for review and appeared before the Tribunal on two occasions, 18 December 2014 and 14 January 2015 to give evidence and present arguments and was assisted by an interpreter as well as his registered migration agent. The Tribunal carefully set out the relevant law and, in para. 11 relevantly, addressed the applicant’s claims:
11. The issues in this case are that the applicant claims to fear persecutory harm if he returns to Sri Lanka on the basis of his ethnic background as a Tamil and because he claims to be a member of a particular social group which in his case would be as a returning failed asylum seeker. The applicant’s claim is that he would be perceived as having an imputed political opinion of being anti-government or pro LTTE because he left Sri Lanka illegally. The applicant's wider claims to fear persecutory harm in relation to these issues also involved claims that he fears harm because of the activities of his brother [K] and also claims to fear harm from that brother. The applicant also claims that because he and his brother provided support to a particular candidate in a local election that he fears harm from some Muslim candidates in that election. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed
The Tribunal carefully identified the applicant’s evidence, including evidence about his brother and his brother’s relationship with a woman who had family links to the LTTE and alleged fears by the applicant that the authorities would be looking for his brother and the applicant.
The applicant identified that his fears included a fear because he had previously left Sri Lanka illegally in 2005 and had done so again and was making an asylum claim in Australia. The Tribunal identified the applicant’s interview in August 2012 and the claims that he advanced. Materially, in para.26 the Tribunal said the applicant at the first Tribunal hearing confirmed his claims/grounds for seeking protection and these were that he was a Tamil and if he returned to Sri Lanka would be a failed asylum seeker with an imputed political opinion of being opposed to the Sri Lankan Government. The Tribunal identifies that at the second hearing the applicant said he was afraid to return to Sri Lanka because he was mainly fearful about harm from his brother and his alleged brother’s underworld connections, and because he had been involved in reporting his brother’s abduction in 2008.
At the hearing, the applicant was asked by the Tribunal about his statutory declaration and claims he fled illegally because he was concerned he would face problems because of his brother and that his life would be in danger. The evidence before the Tribunal from the applicant, was that his brother had been arrested before the applicant had left the country illegally and was in custody at that time.
The Tribunal asked the applicant how, in those circumstances, his life would be in danger when his brother was already in custody, and said that the applicant agreed and that it did not appear that his life would be in danger, in those circumstances. The applicant said he did not know why the police had arrested his brother on that occasion. The applicant identified that the police had, in fact, released his brother after about three months.
The Tribunal asked the applicant about the charging and sentencing process and detention of his brother and the applicant was described by the Tribunal as not really engaging with the question. It is in this regard that the Tribunal made, as it was open to it, findings in respect to the credibility of the applicant. The Tribunal raised further concerns in relation to the applicant’s credibility. In paragraph 37, relevantly:
37. …. I again raised my concerns about attempting to get details from the applicant about his claims and the dates on which he said events had occurred. I asked questions at both hearings about his claim that the police said that they would take the applicant if they could not find [K] but it was difficult to obtain details or clarification. As well the applicant now claimed it was the secret police or CID who had been asking questions of his mother rather than just to men in white suits and that the police were threatening to detain the applicant if they could not locate [K].
In paragraph 38, the Tribunal relevantly said:
38. At the first hearing I raised the applicant's claims about the police making enquiries about the applicant’s employment and when he would be home and telling the applicant’s mother that if [K] did not surrender to the police they would arrest the applicant. I raised the credibility of this claim with the applicant in that he could not remember the date of the incident or explain the reason why the police would arrest him. He claimed that the police had given his mother a document in relation to [K] and that they had come three times and spoken to his mother and said that [K] had to report to the police.
The Tribunal also asked the applicant, in paragraph 40:
40. I asked the applicant why he had not left Sri Lanka lawfully given that he had a passport. He said that he had heard about a boat leaving to come to Australia. I asked why he had come to Australia and why he would not have gone to somewhere closer like India. The applicant said that he was not educated enough to think clearly about the issues involved in deciding to leave Sri Lanka illegally.
The Tribunal asked the applicant about his alleged continuing to act as a surety for his brother in relation to his brother’s bail and the applicant’s fears for harm. So, in this regard, in paragraph 42, the Tribunal said:
42. …I raised the credibility of his claims given the lack of information and detail by the applicant about this aspect of his claims. …
In paragraph 43, the Tribunal, again, raised with the applicant:
43. The applicant claimed that he would be detained because he had acted as surety for [K] and that [K] had not answered his bail on occasions and in those circumstances the applicant would be charged with an offence. I raised with the applicant why he believed that would occur as the Department delegate had raised that aspect in his reasons for decision and had indicated that he had been unable to find any law in Sri Lanka that supported the applicant's claims in this regard. The applicant confirmed that he believed that he would face charges if he returned to Sri Lanka because [K] had not appeared in court. The applicant also claimed that the police had threatened to shoot [K] in around March 2011 because of the difficulties that [K] was creating.
In paragraph 49, the Tribunal said as follows:
49. I raised my concerns with the applicant about his evidence and his claims and also referred to available country information and in particular to reports dated three October 2014 by the Department of Foreign Affairs and Trade in relation to Sri Lanka. I raised my concerns about the applicant's credibility and the credibility of a number of his claims and referred to the fact that I had on numerous occasions during the hearings raised my concerns about the applicant's credibility and the credibility of some of his claims. I referred to the applicant's profile which did not indicate that he had any actual LTTE connections that would put him at risk. I referred to the 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka. I indicated that Tamils were not specifically named as being at risk on that basis alone and that it was the actual or perceived connection to the LTTE that raised the risk profile. I noted that there was no country information that supported the applicant's claims that he would be charged in relation to the surety issue regarding [K]. I referred to the two DFAT reports dated October 2014. I noted that the security position/situation in Sri Lanka had improved significantly since the end of the conflict in May 2009 and the reports indicated a general improvement in the situation for people of Tamil ethnic extraction. I said importantly for the applicant that the general situation for people returning to Sri Lanka is that they would be interviewed at the airport upon their return by the CID, state security and immigration officials. That process applied to all returning citizens regardless of ethnic extraction or religion. I said for people who have left illegally like the applicant it was almost certain that he would be charged with an offence of having left illegally and that would almost certainly mean that he would be detained for some time until he was granted bail. That detention may mean that the applicant could be held in custody for several days and that would involve custody in jail. I said the Tribunal accepted that conditions in Sri Lankan jails were poor and that there was overcrowding and poor conditions generally in those jails. I said the information indicated that first offenders inevitably received a fine in relation to this offence. I noted that the complication in relation to the applicant was that he claimed had been previously imprisoned for the offence of leaving Sri Lanka illegally. In those circumstances it was unclear what penalty the applicant would face for a second offence.
50. The applicant responded by indicating that he was grateful for the opportunity to have spoken about his claims during the various interview situations. He said words to the effect that he realised during the Tribunal hearing that he had to clarify his claims in a lot of detail. He did not provide any further comments in relation to the issues that I had raised
51. The applicant's representative indicated that he appreciated there were a number of credibility issues that the Tribunal would need to consider in relation to the applicant but that just because there were contradictions in the applicant's evidence it did not mean that events had not happened as claimed by the applicant. The agent spoke about the applicant's consistent claim regarding the "black sheep in the family" in referring to [K] and that the evidence was that [K] was prone to violence. The representative referred in particular to the significant issue of illegal departures from Sri Lanka on two occasions by the applicant. In those circumstances the representative referred in particular to conditions in prison and the real risk to the applicant as a Tamil in that situation in terms of a second offence in relation to leaving Sri Lanka illegally.
Having identified that evidence, the Tribunal carefully turned to consider the claims and the evidence and to make findings that were open on the evidence. The Tribunal found, in para.52, that Sri Lanka was the applicant’s country of nationality, and for Convention purposes, the receiving country for complementary protection purposes. The Tribunal said in para.53:
53. I am not satisfied as to the applicant's claims to have a well-founded fear of persecution if he returns to Sri Lanka on the basis of his Tamil ethnic extraction. I am also not satisfied that the applicant has a well-founded fear of persecution if he returns to Sri Lanka on the basis that he is a failed asylum seeker who would be perceived to be either pro LTTE or to hold anti-Sri Lankan government views.
In relation to the applicant’s brother and the applicant’s fear, the Tribunal said as follows:
The evidence before the Tribunal indicates clearly that the real basis for the applicant fearing harm if he returned to Sri Lanka is that he is afraid of his brother, [K] and fears harm from [K]. The applicant also claims to fear the police or other Sri Lankan authorities on the basis that his brother [K] causes problems and the police may do some harm to the applicant if they are unable to locate his brother. I also do not accept that the applicant has a real chance of suffering persecutory harm on the basis that the police if unable to locate his brother [K] will take some action against the applicant. I also do not accept that the applicant has a real chance of suffering persecutory harm on the basis of his claims that he fears harm from underworld associates of his brother, [K]. I am also not satisfied that the applicant faces a real chance of persecutory harm from two Muslim candidates and their supporters in relation to an election where the applicant and his brother [K] supported another candidate. I'm also not satisfied that the applicant faces a real chance of persecutory harm on the basis that because he was a surety for bail for his brother [K] that he faces harm from the police on the basis that [K] did not answer his bail on occasions.
The Tribunal said in para. 56:
56. I am not satisfied as to the applicant's credibility in relation to a number of his claims. There was a great deal of vagueness surrounding much of the applicant's evidence in relation to many of his claims. I have referred elsewhere in these reasons to my concerns in relation to that issue. I have considered the applicant's claims that he has difficulty remembering events and I've also had regard to the letter from STARTTS which was provided to the Tribunal by the applicant which refers to counselling treatment which the applicant has received. I note that letter refers to the applicant exhibiting signs of post-traumatic stress disorder. The letter does not refer to any apparent memory problems that affect the applicant and refers to the applicant as "alert and was oriented to time and place". The letter also refers to the applicant feeling anxious regarding his asylum claim. I accept that the protection Visa application and review processes can be stressful and cause difficulties for applicants. However I do not accept the applicant's vague evidence and, on occasions, inconsistent evidence in relation to critical issues can be fully attributed to any conditions associated with post-traumatic stress disorder or to anxiety. I am not satisfied that some of the events referred to in the applicant's claims occurred as claimed by the applicant. I did not find the applicant's claims that he continued to act as surety for [K] to be credible in all the circumstances and given his inability to recall the details of charges in relation to bail and the lack of any supporting documentation in relation to bail surety I am not satisfied about the applicant's claims that he went surety for [K]. I am also not satisfied as to the claims that police told his mother that they would detain the applicant if they could not locate [K].
In para. 57, the Tribunal said:
57. I have considered the applicant's evidence and claims in relation to his fear that he will suffer harm from the police if he returns to Sri Lanka on the basis that he will be detained by the police if they are unable to locate [K]. As indicated much of the applicant's evidence about this aspect and other aspects of his claims was both vague and confusing. There appears to have been only one occasion where the applicant claimed he was detained at a police station in relation to an enquiry into his brother [K]. It seems on the basis of the applicant’s evidence that he was detained only for a short period and it is unclear to the Tribunal as to the reasons why he claims he was detained on that occasion. Given my concerns about the vague claims by the applicant and his inconsistencies and confusion over details and in particular dates I am not satisfied as to the applicant's claims that the police/CID/secret police have said that they would detain the applicant if they are unable to locate [K] and that they had a conversation with the applicant's mother to this effect. I note the translation of the letter from the applicant's mother that was provided to the Tribunal by the applicant does not refer to any conversations with police that are consistent with the applicant's claim. I am not satisfied as to the applicant's claims in relation to this issue and that he fears harm on that basis. In those circumstances I'm not satisfied that the applicant faces a real chance of persecutory harm on the basis of this claim. I note as well the applicant's evidence is that [K] is not now living in the applicant's home and that the relationship with [K] deteriorated further in 2012 over the land dispute and in those circumstances the applicant’s contact with [K] would now be reduced if the applicant should return to Sri Lanka.
58. I'm also not satisfied as to the applicant's claims that he will be arrested and detained and fears harm on the basis that because he acted as surety for [K] and [K] did not answer bail that he will be arrested and detained on that basis. The Department delegate had noted that they had been unable to find any country information that supported the applicant's claims that he would face detection and charging and possible harm on the basis of having acted as surety for [K]. The applicant was unable to refer to anything specifically in relation to this claim other than a claim that he feared harm on this basis. In those circumstances I am not satisfied that the applicant faces a real chance of persecutory harm on the basis of this claim and as indicated I am not satisfied on the basis of the applicant’s evidence that the applicant acted as a surety for his brother as he claims.
In relation to the alleged fear from underworld associates of his brother, the Tribunal noted the applicant provided no real detail in relation to the claim but acknowledged to the Tribunal that he had not suffered any harm from those associates at any time. Relevantly, the Tribunal continued to find:
59. …I am not satisfied that the applicant has a well-founded fear of harm on this basis. Having considered all the circumstances surrounding this claim I am not satisfied that the applicant has a real chance of persecutory harm on this basis. The applicant also acknowledged that he had not suffered any harm as a result of any confusion about identification between himself and [K]. [emphasis added]
This last finding is of significance in relation to the lack of substance in relation to ground 2 and, in particular, to the extent that Mr Kumar sought to advance on behalf of the applicant that the combination of assertions concerning the brother were not addressed cumulatively, it is clear that the Tribunal, in para.73, said:
73. I have considered the applicants claims both individually and cumulatively and had regard to the evidence and submissions and country information in relation to those claims.
The Tribunal continued in para.60:
60. I have considered the applicant's claims he fears harm on the basis of his Tamil ethnic extraction and an imputed political opinion that because he left Sri Lanka illegally he could be perceived as having pro LTTE opinions or anti Sri Lanka government views. The applicant did not refer to any occasion on which he claims that he suffered harm on the basis of his Tamil ethnic extraction and his evidence about claims with the exception of the political support aspect were all essentially based around his claim that he feared harm because of some connection with [K]'s activities. The time that he said that he was attacked by supporters of two Muslim candidates related to he and his brother’s support for another candidate in local elections. He claimed on that occasion he was attacked with a shovel and that he reported the attack to the police. The harm that arose on that occasion was apparently on the basis of having not voted for the two Muslim candidates as opposed to being based on the applicant's Tamil ethnic extraction but the applicant did claim in his statement that the Muslim people had targeted Tamils who had not voted for the two Muslim candidates. I have considered the applicant’s evidence about this claim. He claimed to the delegate that the attack occurred about three months before he left to come to Australia. The applicant said he had been attacked with a shovel and not a whip as had been reported in the delegates record of decision. The applicant had not referred in his statement/ statutory declaration that this incident had occurred. The election had been held in March 2011. The applicant in his statement/statutory declaration had referred to at least two Tamil males having been targeted by the Muslims from a nearby village and the inference was that this was in relation to the election outcome. There was no reference in the statement to any attack upon the applicant. The statement/declaration is dated 23 February 2013. Given that the applicant referred to events after the election in that declaration it would be reasonable in all the circumstances to assume that the applicant would have referred to the attack on him in approximately March /April 2012 if it had occurred. The applicant’s claims for protection include a fear of harm based on the applicant’s support for another candidate in those elections. Having considered the issues and the evidence and also taking account of my assessment of the applicant’s overall credibility I am not satisfied as to the applicants claims that he was attacked on this occasion and that he fears harm from the two Muslim candidates and their supporters as a result of the election in March 2011. Apart from the applicant’s claims in his statement and before the Tribunal that there had been an incident on the day of the actual election he made no other claim that there had actually been any incident involving him with the Muslim candidates or their supporters as a result of the election (apart from the claimed 2012 incident which I have referred to). I have considered the applicant’s claim that he fears harm if he returns on the basis of an imputed political opinion that he is opposed to the Sri Lankan government because he left illegally.
The Tribunal materially found in para.61:
61. The applicant has no political or pro- LTTE profile that is suggestive of risk.
The Tribunal noted that the UNHCR Eligibility Guidelines do not identify Tamils as being at risk, per se, on that basis. The Tribunal referred to the issue of failed asylum seekers who were passengers on people smuggling ventures and noted:
61. …Those guidelines and reports do not suggest that returned failed asylum seekers and who are Tamil and who left illegally are at risk of harm on the basis of an imputed political opinion that they are opposed to the Sri Lankan government unless some other identified risk factors apply. I accept that it is highly likely that the applicant will be charged with offences of having left Sri Lanka illegally if he returns to Sri Lanka. However I regard any such charging and any subsequent detention of the applicant as being the non-discriminatory enforcement of a law of general application and not imposed for any Convention based reason.
The Tribunal accepted that the applicant may be charged with offences of having left Sri Lanka illegally if he returns to Sri Lanka but the Tribunal says any such charging and subsequent detention of the applicant as being a non-discriminatory enforcement of a law of general application not imposed for any Convention-based reason. Tribunal went on to identify that on the evidence before the Tribunal, the applicant has no LTTE connection or profile that would put him at risk on the basis of any actual imputed political opinion that he supports the LTTE. In relation to the events that occurred in 2005, the Tribunal said:
62. …The applicant claims these events occurred in 2005 and given the passage of time and the fact that there is no evidence to indicate that the applicant faced any threats or harm on this basis while he was in Sri Lanka I’m not satisfied as to the applicants claims in relation to this issue. …
The Tribunal carefully turned to the country information in respect of the position of Tamil people. The Tribunal said as follows:
63. As indicated the applicant has no risk profile in relation to the LTTE or in relation to other risk factors identified in the 2012 UNHCR eligibility guidelines and in those circumstances and having regard to all the evidence and the applicant's claims and the information before the Tribunal I am not satisfied that the applicant faces a real chance of persecutory harm on the basis that he is Tamil or on the basis of an imputed political opinion that he supports the LTTE. As discussed earlier I am also not satisfied on the basis of the consideration of the evidence and the country information in the DFAT Reports that the applicant faces a real chance of persecutory harm should he be returned to Sri Lanka for an imputed political opinion that he is a failed asylum seeker who holds anti-Sri Lanka government opinions. The evidence does not suggest or support that the applicant faces a real chance of persecution on that basis.
The Tribunal continued to address the applicant’s claims in respect of being detained and imprisoned for having left Sri Lanka illegally, and relevantly said:
64. …I found the applicant vague and evasive in responding to questions about the circumstances surrounding this claim and raised that aspect with him in the hearing . I have considered the applicant's claims about this issue and also considered the evidence about his claim as to why he left on that occasion. The applicant's evidence about [K] up to that time in 2005 was that [K] had married and then returned home and told the applicant that he was afraid because his wife's family had LTTE links. The applicant claimed [K] told the applicant to hide at night in case the police came. It was unclear why the applicant was hiding at night apart from fearing harm on the basis that he was afraid that he would be mistaken for [K]. The applicant agreed that he had no LTTE connections. I had asked him about this issue and raised the identification card as being able to identify him if he was detained by the police in error. I found the applicant again was very vague overall in relation to his fears and his evidence surrounding this claim. He claimed he did not know why the police arrested [K] around that time. I have considered the evidence and also considered my assessment of the applicant's credibility and the issues surrounding the applicant's often vague and imprecise evidence and explanations about his claims. The applicant told the Tribunal he had no documentation in relation to his claim to have been detained and sentenced and pardoned for having left Sri Lanka illegally in 2005. In those circumstances and based on the applicant’s evidence I am not satisfied that the applicant, as he claims, was arrested and detained and imprisoned in 2005/2006 for leaving Sri lanka illegally.
The Tribunal indicated that, in para.65, it had considered the applicant’s claims which it had identified and the evidence, together with the country information and submissions made on behalf of the applicant. Paragraph 65 is of importance in reading the Tribunal’s reasons as a whole and that it be clear that there is no error of the kind identified in either grounds 2 or grounds 3. In para. 66 the Tribunal said:
65. I have considered the applicant’s claims and the evidence together with country information and the submissions made on behalf of the applicant.
66. I accept that the applicant is fearful of his brother [K]. I accept the applicant’s claims that [K] was abducted in 2008. I accept that the applicant and his brother together with other people in his village supported a candidate in the March 2011 elections and that as a result of that support there were some difficulties or issues with some Muslim candidates and their supporters. I am not prepared to accept the applicant’s claims that on that occasion some threats of harm were directed towards the applicant’s family. Much of the applicant’s evidence before the Tribunal about this incident related to an attempt to attack a Catholic priest in the village and the village church and police were called. The evidence about this incident together with my concerns about the applicant’s credibility cause me not to accept
the applicant’s claim about any threats being made to his family on this occasion. The applicant claimed that a few days later his brother [K] surrendered to the police and it was unclear why he had done so on that occasion other than perhaps it was linked to the applicant’s claim that his brother had damaged an election poster or was wanted in relation to an assault. I’m not satisfied on the evidence before the Tribunal as to the applicant’s claims that he has a well founded fear of harm from the Muslim politicians or their supporters on the basis of an imputed political opinion in that he supported a particular candidate in those elections. As I do not accept the applicant’s claims that he provided surety and bail for his brother I am also not prepared to accept the applicant’s claims that he was detained at a police station for a short time by the police when they were looking for his brother. I accept that the applicant left Sri Lanka illegally and came to Australia in 2012.
The Tribunal identified that they had carefully considered the written submissions provided on behalf of the applicant and, in particular, that submission identified the same issue as ground 11 in relation to being a failed asylum seeker and left illegally, which was clearly the subject of a finding open to the Tribunal at para.72. In para.68 the Tribunal, relevantly, said:
68. I have considered the submissions made on behalf of the applicant in this regard and more generally in relation to the applicant’s claims however I consider that the two DFAT Reports of October 2014 in relation to Sri Lanka provide reliable and recent sources of information about issues relevant to the applicant’s claims.
The Tribunal carefully identified the process to which the applicant would be exposed on return to Sri Lanka and made a finding that the applicant had no such risk profile of a kind that was likely to give rise to any risk as having a real or perceived link with the LTTE. The Tribunal continued in that para.70:
70. As indicated I’m not satisfied as to the applicant’s claims in relation to having left Sri Lanka illegally in 2005 and that he was subsequently arrested and imprisoned on that basis and that he served about five months in custody before he was pardoned. I have considered notwithstanding my finding whether the applicant would be at a greater risk for a convention based reason on the basis of this claim. I accept the real possibility that if in fact the applicant had committed a prior offence of leaving Sri Lanka illegally that he would be highly likely to face a greater penalty whether by way of a larger fine or an actual term of imprisonment or perhaps a longer period on remand pending any bail determination or awaiting trial. However I am not satisfied that any longer time in custody on the basis of having committed a prior offence would be caused or would arise for any Convention based reason but would be as the result of the non discriminatory application of a law of general application and applied to all persons in that position. Because I have not accepted the applicant’s claim that he was previously detained and imprisoned for leaving Sri Lanka illegally I have considered the applicant’s position in terms of what would happen to him if he were to return to Sri Lanka because he left illegally to come to Australia. I have outlined and referred to the procedures that are referred to in the DFAT country report for Sri Lanka dated October 2014 . I accept that the applicant would be detained and questioned upon return as indicated above in these reasons. I accept that it is highly likely that he would be charged with offences of having left Sri Lanka illegally. I accept that he would be remanded in custody pending bail determination. I accept that he may be remanded in custody for up to several days and including in prison conditions in Sri Lanka. I accept that prison conditions in Sri Lanka are poor. However any period in detention that the applicant might face would be the result of the non discriminatory enforcement of a law of general application and not for any Convention based reason. I am not satisfied as I have indicated that the applicant was previously arrested and imprisoned for leaving Sri Lanka illegally. Based on that finding and in those circumstances Country information referred to earlier indicates that it is highly likely that the applicant will have a fine imposed upon him for having left Sri Lanka illegally to come to Australia.
71. The country information contained in the DFAT country report notes that DFAT “assesses that detainees are not subject to mistreatment during their processing at the airport”. That report also notes, as indicated earlier, that returnees are processed at the airport upon return according to standard procedures regardless of ethnic extraction or religion. That report also refers to the issues surrounding torture or mistreatment of returnees. The DFAT country report in summary assesses that there have been credible reports of torture carried out by Sri Lanka security forces but that is difficult to determine the prevalence of torture with any accuracy. The country report notes the torture may be used to extract information or confessions from suspects. DFAT does not routinely monitor the situation of returnees but it assesses that the risk of torture or mistreatment for the great majority of returnees is low including for those suspected of having committed offences under the Immigrants and Emigrants act. The report further assesses that the risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes including people smuggling or terrorism offences. Again the applicant has no such profile in relation to the area of risk associated with torture or mistreatment of returnees and in those circumstances I am not satisfied as to the applicant’s claim to have a well founded fear of harm that he will be beaten during questioning upon his return.
72. I am not satisfied having regard to the applicant’s claims and the evidence before the Tribunal together with country information as to the applicant’s claims that he has a well founded fear of persecution on the basis of his claims should he return to Sri Lanka either now or in the reasonably foreseeable future. I am not satisfied that the applicant has a real chance of persecutory harm based on his claims that he fears harm because of his Tamil ethnic extraction or because if he returns to Sri Lanka he would be a failed asylum seeker who left illegally and who would be perceived to have imputed political opinions of being pro-LTTE or anti the Sri Lanka government. I am also not satisfied that the applicant has a real chance of persecutory harm on the basis of his claims that he fears harm because of an imputed political opinion based on his support for a particular political candidate in local elections and that he fears harm from Muslim politicians or their supporters on that basis.
73. The evidence before the Tribunal is the applicant fears harm from or because of his brother [K] if he returns to Sri Lanka. I have referred to the various claims and issues and the evidence from the applicant surrounding his dealings with his brother and his claims regarding why he fears his brother. I’m not satisfied the applicant’s claims to fear harm from his brother involve any Convention based ground or reason. The evidence before the Tribunal in relation to this issue does not support the applicant’s claim that he has a well founded fear of persecution from his brother for any Convention based reason. I also note that the applicant claimed in relation to the claim that his wife was attacked and threatened by [K] and that the applicant’s family reported the attack to the Sri Lankan police and in those circumstances sought to avail themselves of state protection. Overall I am not satisfied that the applicant has a well founded fear of persecutory harm should he return to Sri Lanka for any Convention based reason in relation to his claims. I have discussed my reasons in relation to those issues in these reasons. I have considered the applicants claims both individually and cumulatively and had regard to the evidence and submissions and country information in relation to those claims. I am not satisfied after having considered all those aspects that the applicant has a well founded fear of persecutory harm should he return to Sri Lanka now or in the reasonably foreseeable future. I am not satisfied in those circumstances that the applicant would face a real chance of persecutory harm should he return to Sri Lanka either now or in the reasonably foreseeable future on the basis of his claims to fear persecutory harm. [emphasis added]
The Tribunal turned its attention to the issue of complementary protection and, relevantly, said:
74. … I am not satisfied as to the applicant’s claims that he was previously arrested and imprisoned for having left Sri Lanka illegally in 2005/2006. However I have considered whether the applicant would face a real risk of significant harm if he returned from Australia to Sri Lanka if he had committed an earlier offence as he claims. I’ve considered s.36 (2A) and s.32(aa) and the definitions in s.5(1) of the Act in this context. I have considered the applicant’s risk profile in accordance with the 2012 UNHCR eligibility guidelines in this context .As indicated I accept that if the applicant had committed a prior offence of having left Sri Lanka illegally then he would on his return to Sri Lanka likely face a significant penalty on the basis of having committed a prior offence. That penalty may be an increased fine or a custodial sentence or even an extended period on remand pending any bail determination or trial. I have considered whether that situation would mean that there is a real risk the applicant would be subjected to torture or cruel or inhuman treatment or punishment or be subject to degrading treatment or punishment. I am not satisfied that there is a real risk that the applicant would be arbitrarily deprived of his life or will be subject to the death penalty. In considering the aspects referred to above in terms of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment and having regard to country information and importantly to my assessment of the applicant’s risk profile I’m not satisfied that there would be the required intention as required by the Migration Act to inflict those conditions on the applicant should he be detained and imprisoned either in terms of serving a sentence or on remand.
The Tribunal identified that the applicant does not have a risk profile of the kind of a person who committed serious offences, rather than just having left Sri Lanka illegally, and said:
75. …I am satisfied that any period in detention that the applicant would face would be the result of the non-discriminatory enforcement of a law of general application. In those circumstances and having regard to the intention aspect and the country information referred to above I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that the applicant would suffer significant harm.
In para.76, the Tribunal further addressed the applicant’s evidence in relation to both his brother and his brother’s wife and, relevantly, said:
76. In those circumstances and having regard to the overall evidence and to the fact that the applicant’s family has sought to report [K] to the police at least on one previous occasion I am not satisfied that there are substantial grounds to believe that the applicant is at a real risk of significant harm if he returns from Australia to Sri Lanka on the basis that he claims to fear harm from his brother either directly or in relation to [K]’s threats and attack on the applicant’s wife and the threats to the child. … am not satisfied given the applicant’s very vague evidence about the events that his wife was actually assaulted. I believe the evidence is more indicative of threats being made on that occasion. The applicant did not refer to the claimed assault on his wife until he was asked specifically about that claim. He did refer to the threat situation initially in his evidence. In the circumstances I am not satisfied that his wife was actually assaulted as he claims.
77. In considering the issue of complementary protection overall in relation to the applicant and for the reasons discussed above I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm
It is under those circumstances, the Tribunal made a finding that the applicant was not a person in respect of whom Australia has protection obligations under the Convention and the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa), and for those reasons affirmed the decision for the Tribunal.
In this case, for the reasons I have given, I am clearly satisfied that the application is doomed to failure. I am clearly satisfied that the proceedings have no prospect of success. The proceedings are summarily dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 25 March 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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