SZWDK v Minister for Immigration

[2015] FCCA 2164

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWDK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2164

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether Tribunal failed to take into account relevant claims – whether the Tribunal breached its duty under s.424A – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424

SZSPE v Minister for Immigration & Border Protection [2014] FCA 267
SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64

Applicant: SZWDK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 411 of 2015

Judgment of: Judge Smith

Hearing date: 5 August 2015

Date of Last Submission: 5 August 2015

Delivered at: Sydney

Delivered on: 14 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S. Zarucki, Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 411 of 2015

SZWDK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia on 19 July 2012. In November 2012, he applied for a protection visa claiming that if he were to return to Sri Lanka he would be harmed and mistreated because he is a young Tamil and would be suspected of being a former member and supporter of the LTTE. One of the reasons for that, he claimed, was because he had lived in a former LTTE-controlled area. The applicant also claimed that he would be harmed because he has fled to a Western country seeking asylum.

2. A delegate of the Minister decided to refuse to grant the applicant a protection visa in October 2013 and the applicant applied to the Refugee Review Tribunal for review of that decision. The Tribunal affirmed the delegate’s decision and the applicant now seeks judicial review of that decision.

3. In order to succeed in his application, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error. He seeks to do that on two bases: first, by arguing that the Tribunal erred in its consideration of punishment that would be inflicted upon him upon his return to Sri Lanka in connection with his illegal departure; and second, by asserting that the Tribunal failed to comply with its obligation under s.424A of the Migration Act 1958 (Cth). For the reasons that follow, neither basis succeeds and the application will be dismissed.

The applicant’s claims

1. The applicant claimed that his family often travelled between Mullivaitvu and Udappu for fishing and that the first of these was controlled by the LTTE. He said that his uncle was often harassed by the authorities because of this and that in 2007 the police came to their house and took his uncle, beat him up and put him in jail. The family was also questioned and the applicant was forced to pay bribes to the authorities in order to avoid being detained and beaten. He then travelled to Dubai where he worked until he returned upon hearing the news that his uncle was sick. The applicant claimed that he had been detained by police for several hours in 2009.

2. After his return from Dubai in March 2012, the applicant and his brother were arrested and detained in May 2012. They were accused of being associated with the LTTE and of trying to go to Australia. The applicant was threatened that if he ever tried to flee Sri Lanka he would be killed. The applicant left Sri Lanka three weeks later.

3. At the hearing conducted by the Tribunal, the applicant also claimed that he feared harm in relation to his marriage. He claimed that his wife’s family wanted him to divorce his wife and that he was coming under pressure from them in relation to that issue. This claim was explained in subsequent written submissions as being that the Sri Lankan authorities had located his wife and had been harassing her because of the applicant. It was claimed that her parents had threatened that they would disclose information about him if he returned to Sri Lanka if he did not divorce his wife.

4. At the hearing the applicant also claimed that the Army was asking his mother and sister in Sri Lanka about him and his brother. He said that his brother had gone into hiding because of this and again claimed that his brother was charged at the same time that he was charged in relation to attempting to leave Sri Lanka illegally in May 2012.

The Tribunal’s decision

1. The Tribunal accepted that the applicant’s uncle was detained for the reason claimed. However, the Tribunal found that, with one minor exception regarding his detention in 2009, the applicant had no further difficulties with the authorities in Sri Lanka until he was detained on or about 28 May 2012 and charged with attempting to leave Sri Lanka illegally. For that reason, the Tribunal found that the applicant did not have a profile that supported the contention that he would be perceived to be pro-LTTE.

2. The Tribunal noted that the applicant had essentially withdrawn his claim to have grown up in an LTTE area, saying that he had moved to the East Coast after the conflict had ended. Accordingly, the Tribunal found that the applicant did not have a well-founded fear of persecutory harm on the basis that he is a young Tamil male or that he would be perceived to have an imputed political opinion because he grew up in LTTE area or because he lived in such an area after the war had ended.

3. The Tribunal next considered the applicant’s claim to fear harm as a failed asylum seeker and as someone who had left Sri Lanka illegally. The Tribunal accepted that the applicant had left Sri Lanka illegally and that in late May 2012 he was charged with attempting to do so and was detained for three days. It found that the proceedings against him arising out of that incident still had not been completed and that it was highly likely that a warrant for his arrest had been issued on the basis that he did not answer bail and appear before the court in relation to those proceedings.

4. However, the Tribunal did not accept that the applicant had to pay bribes in this respect or in order to be able to return from Dubai. Similarly, it did not accept that the authorities visited the applicant’s home since he had left Sri Lanka and threatened his brother about the applicant’s departure to Australia or that his family had been questioned about him. It concluded that, with the exception of the outstanding charges against the applicant, in relation to his attempt to leave Sri Lanka in late May 2012 and subsequently having left illegally, the applicant was of no interest to the Sri Lankan authorities. It found that the applicant’s arrest was not based upon any Convention reason.

5. Given that the applicant left Sri Lanka illegally, the Tribunal accepted that he would be charged with offences under the Immigrant and Emigrants Act. It found that the most likely penalty for his offence would be a fine and that he may be held in detention for several days in jail which it found were overcrowded and in poor condition. Further, in light of the arrest for past events the Tribunal found that the applicant may be held in custody for a longer period and it was unclear what penalty might ultimately be imposed upon him.

6. However, the Tribunal was not satisfied that in those circumstances the applicant had a well-founded fear of persecution for any Convention reason. First, the applicant was not detained or charged in May 2012 for any such reason; secondly, the fact that he has sought refuge in a Western country would not give rise to the imputation of a political opinion; thirdly, his prior arrest would not have imputed him with any political opinion; fourthly, any detention faced by the applicant would be because of a law of general application and the custodial arrangements would not be imposed because of any Convention reason; fifthly, the laws pursuant to which the applicant might be charged were not enforced in a discreet fashion; and sixthly, while prison conditions, including overcrowding, were poor, any harm that he might suffer did not amount to significant harm and would not be imposed intentionally.

7. For those reasons, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of a protection visa and affirmed the decision of the delegate.

Consideration

Grounds 1-3

1. The first three grounds in the amended application, read together, raise a single complaint. It is that the Tribunal did not consider whether the possible placement of the applicant in the overcrowded jail would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.

2. This argument appears to be the same that was considered by Judge Driver in SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64. That judgment is currently listed for appeal before a Full Court of the Federal Court. However, until it is determined by that Court, I am bound to follow the decision unless I considered that it is clearly wrong. His Honour’s decision was, in turn, based upon the decision of Yates J in SZSPE v Minister for Immigration & Border Protection [2014] FCA 267 on appeal from a judgment of Judge Emmett.

3. I do not consider that the decision in SZTAL is clearly wrong. First, the question of intention must, as a matter of ordinary meaning, require something more than negligence; secondly, it is a question of fact whether or not a person intends to do something and the Tribunal here, (as in SZTAL) found that there was no such intention; and thirdly, the applicant’s argument overlooks the difficult question of whose intention is in issue. It is insufficient in my view, simply to say that the authorities are aware of the general prison conditions and to draw the conclusion from that that anybody who is sent to jail has harm intentionally inflicted upon them. Most legal systems are more complex than that. The material before the Tribunal suggested that, as in Australia, a person would be sentenced to imprisonment only after conviction following a trial on the charges. The sentence would be imposed by a judge in accordance with the provisions of the relevant enactment which, in this case, appears to have allowed for a range of sentences. In those circumstances, the applicant’s argument would require consideration of whether it was the sentencing judge or the legislature that had the requisite knowledge of the prison conditions and thus the intention to inflict harm by a sentence of imprisonment. Those matters tell against the acceptance of the argument.

4. For those reasons, the first three grounds should be rejected.

Ground 4

1. The fourth ground raised by the applicant is that the Tribunal breached the duty imposed upon it by s.424A of the Act. That section requires the Tribunal to give the applicant written particulars of information that it considers would be the reason or part of the reason for its decision. The applicant has not specified what information was the subject of this obligation.

2. It is important to note that the obligation under s.424A does not apply to all “information”. In particular, it does not apply to information, such as the country information relied upon by the Tribunal that is not specifically about the applicant. It also does not apply to information from the delegate’s decision, that the applicant gave for the purpose of the application for review or, such as the information in support of the visa application, that the applicant gave during the process that led to the decision under review: s.424A(3). In my view, those exceptions covered all of the “information” before the Tribunal that might arguably be said otherwise to have fallen within s.424A(1). For that reason, there was no obligation on the Tribunal to give the applicant any particulars of that information and it did not breach any obligations under s.424A. The fourth ground is rejected.

Ground 5

1. The fifth ground in the amended application simply suggests that the applicant needs more time in which to obtain a lawyer. Given that these proceedings were commenced in February 2015 and the hearing was in August, the applicant had a considerable opportunity to obtain legal representation and, for that reason, I have not adjourned the proceedings to give him more time to do so. The ground does not otherwise raise any question to be decided.

Matters raised at hearing

1. At the hearing the applicant raised a number of matters in oral submissions which effectively took issue with findings of fact made by the Tribunal. These submissions did not raise any legal issue or anything else that might constitute jurisdictional error and for that reason, it may be left to one side.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 14 August 2015