SZWDI v Minister for Immigration
[2015] FCCA 639
•19 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWDI v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 639 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28 |
| Applicant: | SZWDI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 408 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 19 March 2015 |
| Date of Last Submission: | 19 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms Z. Taylor Clayton Utz |
ORDERS
The proceeding before this Court, commenced by way of application filed on 20 February 2015, is summarily dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $1,367
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 408 of 2015
| SZWDI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is a matter within the Court’s jurisdiction under s.476 of the Migration Act 1958, in respect of which the applicant seeks a Constitutional writ relating to the decision of the Tribunal, delivered on 2 February 2015, affirming a decision of the delegate not to grant the application a protection visa. The application identifies the Court may hear and determine all interlocutory or final issues and may give directions for the future conduct of the proceedings on the return date.
The application claims the following ground:
Ground One:
The RRT has applied the incorrect test pursuant to Section 91R(2) of the Migration Act 1958 Act
Particulars
By proceeding to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the treat 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)
The Court raised with the applicant that the application failed to disclose an arguable jurisdictional error and was invited to identify why there was an error that this Court should entertain within its jurisdiction. The applicant identified that he could not go back, and that if he went back, he would be killed and that there were people looking for members of his family and that he would be harmed if he went back.
It was for the Tribunal to make findings of fact in relation to the harm that the applicant may face. This Court is confined in its jurisdiction, under s.476, to alleged errors that constitute jurisdictional error in the conduct of the review by the Tribunal. I take into account the exercise of the summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, in particular, [24]-[25] and [59]-[60].
It is clear on the present case that the Tribunal made cumulative findings that mean there is no substance in the alleged jurisdictional error referring to WZAPN v Minister for Immigration and Border Protection [2014] FCA 947, see SZWAU v Minister for Immigration & Ors [2015] HCATrans 2. It is also clear that the case is one where the Tribunal made findings as to the character of the law and did not make any error of the kind identified in WZAPN, identifying the application of the Immigrants and Emigrants Act 1949 (Sri Lanka), as a general law that was not applied arbitrarily or discriminatorily.
It is in those circumstances the ground identified in the application is clearly doomed to failure. In this case, the Tribunal identified that the applicant was a citizen of Sri Lanka and applied for a protection visa on 23 November 2012, having arrived in an unauthorised fashion on 24 June 2012. The delegate refused to grant the applicant a visa on 7 September 2013. The Tribunal noted that the application appeared before the Tribunal on 6 January 2015 to give evidence and present arguments. The Tribunal noted that he was represented by a registered migration agent, who attended the hearing, and the hearing was conducted with the assistance of an interpreter.
The Tribunal identified the applicant as being an ethnic Tamil and identified his claims of fear of persecution in Sri Lanka by reason of his race and imputed political opinion, his ethnicity and his past activities allegedly giving him a profile with the authorities as an affiliate of the separatist movement the LTTE or Tamil Tigers. The applicant also identified a claim that a fear of persecution of being a failed asylum seeker or a member of a particular social group and imputed political opinion.
The Tribunal carefully addressed the applicant’s background and his refugee claims. The Tribunal, relevantly, in relation to Immigrants and Emigrants Act 1949 has said as follows:
36. I accept on the basis of the information provided in the October 2014 DFAT Sri Lanka Country Report that on return to Sri Lanka by air, [the applicant] would likely come to the attention of authorities there as a former illegal emigrant from Sri Lanka as soon as he reaches the airport. I accept that he will likely be questioned by police on return and possibly charged under the I&E Act. I accept that he may have fingerprints taken and be photographed. I accept he may be transported by police to the Magistrates Court in [N] at the first available opportunity after investigations are completed and come under the responsibility of the courts or prison services. I accept that he could remain in police custody at the airport for up to 24 hours, or for three or four days if there is an intervening weekend, and then bailed. I accept that many if not most of the people with whom [the applicant] could be remanded may be Tamils. I find on the independent evidence that he would be granted bail on his own recognisance as, having considered all of the evidence in this case, and having regard to all of the problems I have found in his evidence, I find he would not be suspected of association with people smugglers or with the LTTE.
37. On the DFAT evidence before me, I find that the process of interviewing, detaining and prosecuting Sri Lankans who previously departed illegally is implemented under laws of general application. On the evidence before me, including the evidence and arguments in all of the submissions before me, I am not satisfied that the law that detains or remands illegal emigrants is discriminatory or enforced in a discriminatory way. I am satisfied on the evidence before me that the laws and processes relating to returnees including those who previously departed Sri Lanka illegally would not be applied, exploited or manipulated in any way as to discriminate against [the applicant], notwithstanding that he is a Tamil. In the event that [the applicant] were detained for having departed Sri Lanka illegally, s.91R(1)(c) of the Act, an essential element of “persecution” as defined under s.91R(1), would not be met because I find on the evidence before me that this treatment does not involve “discriminatory conduct”.
Relevantly, the Tribunal concluded:
39. I have considered whether [the applicant] faces a real chance of serious harm in Sri Lanka for reasons of being a Tamil, or Tamil male or young adult Tamil male, or for reasons of any similar permutation of characteristics. In the course of this consideration, I have again referred to the UNHCR and DFAT material. I had particular regard to arguments in the adviser’s submission. I have considered [the applicant]’s claim about the outcome of the recent general elections. I have considered the evidence of [the applicant]’s freedom of movement within Sri Lanka, such as to and from [M], [V], [T] and [B] and his ability to live and work in different regions in Sri Lanka including his home region. I do not accept on the evidence before me that any combination of factors such as [the applicant]’s age, ethnicity, religion, marital status, past occupations, associations, place of origin, family background, places of work, past experiences as a fisherman, encounters with officials or officers at military checkpoints or any other factor gives rise to a real chance of his being a person of interest to the Sri Lankan authorities. Overall, I am not satisfied that [the applicant] faces a real chance of serious harm in Sri Lanka for reasons of being a Tamil, or Tamil male or young adult Tamil male, or for reasons of any similar permutation of characteristics.
40. I am not satisfied on the evidence before me that [the applicant] faces a real chance of being harmed by pro-government agents or militias or paramilitary personnel or anyone else on or after return to Sri Lanka.
41. I am not satisfied that the ongoing existence of the Prevention of Terrorism Act gives rise to a real chance of persecution in [the applicant]’s case.
42. On the evidence before me I find it would be reasonable for [the applicant] to continue to live and work in [U] and his home province. On the evidence before me, I find that there would be no obstacle to [the applicant] re-accessing [U] or his home region after the arrival process discussed above.
Materially, in relation to the alleged error in respect of s.91R, the Tribunal found as follows:
43. I have considered [the applicant]’s claims cumulatively and separately. I have considered general references to Sri Lanka’s human rights situation. However, on the evidence before me, I am not satisfied that [the applicant] faces a real chance of persecution in Sri Lanka in the reasonably foreseeable future for any Convention-related reason. Accordingly, I am not satisfied that he has well founded fear of Convention-related persecution in Sri Lanka. I find that he is not a refugee.
44. For the reasons given above, I am 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)
It is in those circumstances clear that the application, identifying an alleged ground of error on the basis of WZAPN was doomed to failure. The Tribunal turned to consider the complementary protection claims and relevantly found as follows:
50. I do not accept on the evidence before me that the process of investigating [the applicant]’s illegal departure or other aspects of his background on return to Sri Lanka, or the period he may face in in custody for questioning or remand or the fine he might have to pay for illegal departure, or any ensuing sanctions would involve or amount to significant harm, as an act or omission will not constitute torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment if it arises only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights. I find they are lawful sanctions under the I & E Act and not inconsistent with the Covenant.
51. I also find that there would be taken not to be a real risk that [the applicant] will suffer significant harm as a result of the sanctions involved, including his possible detention, because I am satisfied that they come within the exception set out in s.36(2B)(c) in that as a law to which everyone is subject, the risk is one faced by the population of the country generally and is not faced by [the applicant] personally.
52. I find on the evidence before me that [the applicant] will not be arbitrarily deprived of his life or subject to the death penalty being carried out. In light of my finding above on the conditions in which [the applicant] might find himself if remanded I find that those conditions do not constitute torture or cruel or inhuman treatment or punishment because the independent information before does not indicate that it is severe physical or mental pain and suffering or pain and suffering cruel or degrading in nature. Nor is it degrading treatment or punishment as it does not involve extreme humiliation.
53. I do not accept that [the applicant] faces a real risk of significant harm from the state, or the authorities, or agents or supporters of the state, or any other party, in the course of or subsequent to return to [U].
54. I am not satisfied on the evidence before me that the 2015 elections or their outcome give me substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
55. I am not satisfied that the ongoing existence of the Prevention of Terrorism Act gives me substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
56. I am not satisfied on the evidence before me that [the applicant]’s status as a Tamil, or male Tamil, or unmarried male Tamil or any of these permutations combined with his occupational profile or place of origin or places of work, or other factors, give me substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
It is in those circumstances that the Tribunal concluded it was not satisfied that there were substantial grounds for believing that it is a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he would suffer significant harm and accordingly, he is not a person in respect of whom Australia had a protection obligation under s.36(2)(aa) and that he did not satisfy the requirements of s.36(2)(a).
I am satisfied that the findings made by the Tribunal were clearly open. The applicant was provided with a genuine hearing. There is no substance in the alleged ground raised in the application. In these circumstances, the application is doomed to failure. I am clearly satisfied the proceedings have no prospect of success. The proceedings are summarily dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 25 March 2015
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