SZWDF v Minister for Immigration

[2015] FCCA 585

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWDF v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 585

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – Complementary protection – law of general application – 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)(a), 36(2)(aa), 91R(1), 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
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: SZWDF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 400 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

Solicitors for the Applicant: Mr Pady
Westside Legal

Solicitors for the Respondent: Ms Lucchese
Sparke Helmore

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 400 of 2015

SZWDF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondents

REASONS FOR JUDGMENT

1. This is a matter in which the applicant is seeking a Constitutional writ within the Court’s jurisdiction, conferred by s.476 of the Migration Act 1958 in respect of the decision of the Tribunal delivered on 22 December 2014.  The application in respect of the Court date notes the Court may hear and determine all interlocutory or final issues or may give directions for the future conduct of the proceedings.  In this matter, the Court raised with the solicitor for the applicant the concern that the application failed to disclose an arguable case. 

2. The solicitor identified that the ground advanced was seeking to rely upon the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. The Court identified that that was a decision that had been distinguished on a number of occasions, and that that did not identify an arguable ground. The solicitor sought an adjournment in order to develop further the reliance on the WZAPN decision.  In this case, there would be no utility in doing so, because it is clear that this case is distinguishable from WZAPN and that that decision provides no foundation for an argument of jurisdictional error.  There is no utility in granting any adjournment in the circumstance of this case, as it would only unnecessarily increase the cost to the parties and use valuable Court time. 

3. The grounds of the application are as follows:

   Ground One:

   The RRT has applied the incorrect test pursuant to Section 91R(2) of the Migration Act 1958 Act

   Particulars

   a. At paragraph [79] of the decision, the RRT accepted that the applicant would be identified as a failed asylum seeker and as a person who departed illegally;

   Clearly, the Tribunal has engaged in a qualitative assessment of the circumstances of the Applicant’s detention whilst on remand rather than assessing whether the process of being questioned and investigated at the airport and remanded into custody (however brief) would amount to a deprivation of the applicant’s liberty.

   b. The RRT accepted that the applicant had committed offences under Sri Lanka’s Immigrant and Emigrants Act;

   c. At paragraph [82] of the decision, the RRT based available media reports that the conditions of detention applicant will face whilst detained will be overcrowded, cramped and unpleasant”.

   By proceeding to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection  & Another [2014] FCA 947 at (30) and (45)

4. In considering the exercise of the Court’s 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].

5. In this case, the Tribunal identified the applicant as a citizen of Sri Lanka, and applied for a protection visa on 15 February 2013, which the delegate refused on 13 September 2013. 

6. On 18 September 2013, the applicant applied to the Tribunal for a review, and the applicant appeared before the Tribunal on 19 December to give reason and present arguments, and was assisted in the review by a registered migration agent.  The Tribunal identified the applicant’s claims arising from the interview that he gave on 4 September 2012, and in the accompanying statement of 7 February 2013, in his interview on 10 September 2013.  The Tribunal recorded in respect to the applicant the following: 

   12. The applicant stated that he had left Sri Lanka because he feared harm by the Sri Lankan Army (SLA) or the CID for reason of his ethnicity as a Tamil, his religion as Hindu and his suspected membership of the LTTE which was heightened by the arrest of his father in 1996 on suspicion of being an LTTE member, because weapons were found hidden in the forest, 50 metres from the sea where his father worked as a fisherman.  His father was detained for more than one year.

   13. The applicant stated that in February 2007, he went to Colombo to obtain a passport. On arrival, he was questioned by the Sri Lankan Army about LTTE presence in his village; he was questioned for 30 minutes and then allowed to leave.

   14. During 2007/2008, the Sri Lankan Army came and questioned his father on 6 or 7 occasions and each time they asked his father to sign a paper confirming that he lived at that address.  His father continues to be questioned by the Sri Lankan Army in [M] and is required to sign paperwork confirming his address and is questioned about the applicant.  Three days ago his father was again questioned about him and where is living and informed the authorities that the applicant is now living in Australia.  The applicant believed that his father was being closely monitored due to his arrest in 1996 on suspicion of being an LTTE supporter.

   15. The applicant had left Sri Lanka in 2008 to travel to Qatar because his father believed that his life was in danger; this was when the war commenced and Sri Lanka was a very dangerous place for young Tamil men. …

   16. After a Sri Lankan Army camp was established close to their home they were subjected to monitoring and interrogation by the military.  They were unable to work because the government permitted the Sinhalese to control the fishing in [M].  The Singhalese threatened to beat and harm them.  They were unable to report the Sinhalese fishermen to the police because they were supported by the Sri Lankan Army.

   17. The applicant stated that he is perceived to be a supporter of the LTTE because his father was arrested as a suspected LTTE supporter.  Also he has left Sri Lanka illegally and the Sri Lankan Government believes that Tamils who leave Sri Lanka illegally are against them.  If he returns he will be persecuted as a failed asylum seeker.  He will be arbitrarily detained at the Colombo Airport by the Sri Lankan Army or the CID and he will be tortured and killed.

7. The Tribunal identified further content in respect of the applicant’s claims as follows:

   19. At the commencement of the interview, the applicant stated that he also had additional claims to make.  He stated that on 15 February 2012 while waiting at a bus-stop while returning from his computer class, he was approached by a member of the SLA travelling on a motorbike who told the applicant he wanted to speak to him.  The soldier took the applicant behind a nearby wall and sexually assaulted him.  He told the applicant that if he saw him on the same street again, he would assault him again.  The applicant was deeply ashamed and did not tell his parents or anyone else about this assault.  He discontinued attending the computer classes he had been attending prior to this incident and as a consequence was unable to finish the course.

   20. When asked to comment on the discrepancy that the applicant had previously stated that he commenced his computer course in March 2012 and completed it in May 2012, the applicant stated that his course had actually commenced in January 2012 and the dates he had provided the Department in relation to his course were incorrect.  The delegate then noted that the applicant had provided with his application a copy of a certificate dated 31 May 2012 recording that the applicant successfully completed the 'Certificate in Computer Hardware and Networking' at the honours level.  When asked for an explanation as to how he managed to obtain a certificate of completion for a course he had not finished, the applicant stated that the institute had issued him with the certificate even though he had not completed the course because he was poor.  The applicant stated that it was a six month course which he commenced in January 2012 and discontinued in February 2012, with classes once a week. 

8. The Tribunal noted that the delegate set out a number of difficulties with the applicant’s evidence:

   25. In rejecting the applicant’s claims, the delegate set out a number of difficulties with the applicant's evidence.  In particular, the delegate did not accept that the applicant and his family members were unable to work as fishermen in recent times and did not accept as credible the applicant's claims in relation to his alleged sexual assault.

9. The Tribunal summarised what occurred at the hearing on 19 December 2013 and the Tribunal raised with the applicant certain concerns in respect of his evidence. 

10. The Tribunal turned to the issue of illegal departure which had been canvassed in the submissions, and the assertion the applicant might face prosecution and punishment for breaking the law on illegal departure.  The Tribunal noted that it was not clear how this would be persecution.  The Tribunal identified that penalties that may be applied and possible custodial sentence for illegally leaving Sri Lanka.  The Tribunal noted in relation to the credibility of the applicant, the Tribunal was unable to simply accept his claims at face value.  The Tribunal noted in relation to his being a suspected supporter of LTTE, nothing in his previous or subsequent evidence provides any basis for that claim. 

11. The Tribunal noted the inconsistency in that regard in respect of his location at Qatar. The Tribunal recorded that it gave little weight to the statutory declaration, and does not draw any adverse inference from the reference to 2009. 

12. The Tribunal found as a fact:

    67. The Tribunal finds that prior to his departure from Sri Lanka in 2012 the applicant did not have any profile as an LTTE supporter or suspect and was not imputed with a pro-LTTE or anti Sri Lankan Government opinion.

13. The Tribunal noted in para.69 that the applicant’s accounts was the subject of some embellishment.  The Tribunal found in relation to the alleged sexual assault that this was an opportunistic act, and was not because of the applicant’s ethnicity or for any Convention reason, and the Tribunal said it’s satisfied the incident does not provide a basis for a well-founded fear or that there is a chance of real risk that it or something similar will again occur in the reasonably foreseeable future. 

14. The Tribunal found that it is not satisfied the applicant faces any real chance of serious harm amounting to persecution by reason of his religion as a Hindu.  The Tribunal found that it was satisfied that the applicant is not and would not be suspected of LTTE involvement.  The Tribunal had also considered whether the cumulative effect of the applicant’s ethnicity, place of origin, and illegal departure, might lead to an imputed political opinion.  However, after careful consideration of these factors and relevant country information, the Tribunal was not satisfied that this would be the case. 

15. The Tribunal carefully turned its attention to the application of the Immigrants and Emigrants Act, and in material significance in respect to this case, found that it was a law of general application.  This is a material distinction from the decision in WZAPN, where the Court found that there was an arbitrary risk of detention.  Further, it’s clear from the decision of the Tribunal in this case that it has addressed the character of that law and the Tribunal has not made an error of the kind that was identified in WZAPN. 

16. Further, the Tribunal continued to make findings relevantly in respect of s.91R(1)(a) in respect of the cumulative criteria that were adverse to the applicant and consistent with the decision in SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2. These cumulative findings mean that there is no substance in the applicant’s alleged error, based on the WZAPN decision. Further, WZAPN is distinguishable for the reasons given in MZAPO v Minister for Immigration & Anor [2015] FCCA 96.

17. The Tribunal found as followS:

    79. In relation to prosecution for illegal departure, DFAT has advised that penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 Sri Lankan rupees under the Sri Lankan Immigration and Emigration Act. This is a law of general application.  In its recent Report, DFAT assesses that Sri Lankan returnees are treated according to standard procedures, regardless of their ethnicity and religion.  (This is consistent with previous Canadian advice provided by the Canadian High Commission in Colombo in 2011, that the process “is the same for all persons returning to Sri Lanka … The process is not impacted by ethnicity”).  No country information indicates that application of the law is discriminatory or is enforced more harshly against persons of Tamil ethnicity. (emphasis added)

18. The Tribunal found as follows in para.80: 

    80. DFAT advice in the October 2014 Report is that most Sri Lankan returnees from Australia are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the Immigration and Emigration Act. DFAT assesses that detainees are not subject to mistreatment during their processing at the airport where those arrested can remain in police custody at the airport for up to 24 hours. Should a magistrate not be available before this time those charged are held briefly at a nearby prison. The Tribunal does not accept that in the circumstances this amounts to serious harm or persecution. (emphasis added)

19. The Tribunal found that the applicant is not and will not be imputed with LTTE membership or support and found that on the country information Tamils were not targeted or treated differently in Sri Lankan prisons. The Tribunal said that the conditions of the prisons are faced by the population generally if they break the law.  The Tribunal said that it was satisfied that any punishment the applicant would face would be under a law of general application that is not disproportionate or arbitrary and does not amount to persecution for a Convention reason.

20. In those circumstances, the Tribunal came to the material finding the Tribunal was satisfied that the applicant does not face a real chance of serious harm amounting to persecution on return to Sri Lanka now or in the reasonably foreseeable future for a Convention reason or reasons.  In these circumstances, reliance on WZAPN is doomed to failure. 

21. The Tribunal considered the issue relating to complementary protection, and found that the Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations under the Refugee Convention and therefore does not satisfy the criteria under s.36(2)(a) and nor does the applicant meet the criteria under s.36(2)(aa).

22. It is clear in this case that the Tribunal carefully addressed the general application of the Immigrants and Emigrants Act and did not engage in any alleged erroneous qualitative assessment.  It is clear that the Tribunal addressed the character of the law and made findings that were open to the Tribunal and, in essence, the challenge advanced is an impermissible challenge to the findings of fact by the Tribunal.  In these circumstances, 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 twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 March 2015