SZWDN v Minister for Immigration
[2015] FCCA 719
•24 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWDN v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 719 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) |
| MZAPO v The 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: | SZWDN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 420 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 24 March 2015 |
| Date of Last Submission: | 24 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Ms Z. Taylor Clayton Utz |
ORDERS
The proccedings be summarily dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 420 of 2015
| SZWDN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ in respect of a decision of the Tribunal on 2 February 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The application identifies the Court may hear and determine all interlocutory or final issues and it may give directions for the future conducts of the proceedings.
On the return of this application the applicant was informed that the Court, having looking at the application, and having read the Tribunal decision was not satisfied there is any arguable error and invited the applicant to identify an arguable error. The applicant indicated that he wanted more time so as to obtain further documents and to obtain a lawyer. The applicant said he wanted to obtain the CD of the hearing so he could find a lawyer who could find an error.
This Court is not exercising an appellant jurisdiction. An application that is filed in this Court for a constitutional writ must identify an arguable ground and there is no utility in granting any adjournment if the proceedings are clearly doomed to failure. I take into account the principles and caution in respect of the summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), 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].
In this application the grounds identified are as follows:
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 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 Protect & Another [2014] FCA 947 at (30) and (45)
At paragraph [67] 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.
It is clear from the cumulative findings made by the Tribunal in this case, having identified that the Immigrants and Emigrants Act 1949 was a law of general application and not applied for any convention reason and not applied discriminatorily so that the alleged error in reliance upon WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 is doomed to failure; see SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2 and MZAPO v The Minister for Immigration & Anor [2015] FCCA 96.
I should add that it is also clear from the findings made by the Tribunal that the Tribunal addressed the character of the law and did not make an error of the kind identified as a qualitative assessment.
The applicant applied for a protection visa on 20 December 2012 and was interviewed on 24 June 2013 and on 18 September 2013 the delegate refused to grant the applicant a protection visa. The applicant applied for a review and appeared before the Tribunal on 9 December 2014 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter and the applicant was represented by a registered migration agent.
The Tribunal carefully set out the relevant law and the Tribunal found the applicant to be a citizen of Sri Lanka and found that Sri Lanka was his country of reference for the assessment of his refugee claims and the receiving country for the purpose of his complementary protection claims.
The Tribunal carefully identified the applicant’s claims in relation to his alleged fear of persecution by reference to his father’s involvement in standing as a UNP candidate and the alleged circumstances in which the applicant then went to Dubai where he remained until his visa expired and then returned to Sri Lanka.
The Tribunal took into account the applicant’s entry interview and the statutory declaration as at 6 December 2012, as well as the submissions made on 14 December 2012, the interview that occurred on 11 June 2013, and the submissions received on 3 October 2013. The Tribunal heard evidence given by the applicant at the hearing on 8 December 2014, as well as taking into account further submissions made on 9 February 2015.
The Tribunal found that there were a number of matters in the applicant’s evidence that gave concern as to the reliability of his evidence. The Tribunal carefully set out those matters of concern. The Tribunal noted the explanation in respect of the allegation of his father being beaten. The applicant said his memory was not that good all the time and the Tribunal said:
38. …I do not find this to be a reassuring, or persuasive, response.
The Tribunal identified discrepancies in relation to his father’s involvement and, again, found the applicant’s explanation not to be persuasive in relation to the incident of a truck load of Sinhalese men coming to his house. The Tribunal again noted the differences in the account by the applicant and said that the applicant’s explanation was not a convincing response.
The Tribunal raised whether there were any incidents whilst he was in Dubai and, again, identified that the applicant’s response was unsatisfactory. The Tribunal, in para.44, said as follows:
44. I told the applicant that these concerns may cause me to have concerns about his credibility. Accordingly I gave the applicant a final opportunity to address me on this. He told me that he came to Australia to safeguard his life. He said the Australian Government looked after him very well in the camp. He told me that he was happy living in Australia, and “kindly implored” me to grant him a protection visa.
The Tribunal relevantly said in para.46:
46. Overall I found the applicant to have only a vague and generalised knowledge of the events he claimed, and that he has a poor recollection of events due to his admitted memory failure and memory lapses. I find that number of inconsistences and his memory difficulties cause me to not to accept some of the evidence given. In those circumstances I make the following relevant findings.
The Tribunal identified that the applicant was an ethnic Tamil or of Hindu religion and, although finding that his father was pushed and shoved the Tribunal did not accept the applicant’s evidence that he was beaten or taken away.
The Tribunal found that the applicant’s father did not immediately flee to another location. The Tribunal was not satisfied that the incident involving the 25 Sinhalese men occurred and the Tribunal materially found in para.51:
51. I find that the applicant went to Dubai to work for three years, but I not accept that this is because of the attack by Sinhalese men as claimed.
The Tribunal did not accept that there were any events that occurred after the applicant returned from Dubai to Sri Lanka. The Tribunal carefully addressed the issues of the applicant’s Tamil ethnicity, his Hindu religion and his father’s association with the UNP and relevantly made findings as follows:
57. I have considered whether there is a real chance that the applicant will be harmed because of imputed links to the UNP. The agent submits that it is possible that a supporter of the UNP would be seen as posing a risk to the unity of national rule. In circumstances where the applicant was not a member of the UNP or a supporter, and his only link to the UNP was his father’s support of a cousin standing for election in 2009, I find that he has no fear of persecution upon return to Sri Lanka for reason of his imputed support of the UNP. Even I accepted that he subjectively held this fear, there is no country information which supports a fear of persecution based on support of the UNP, unless the person is a high profile activist or supporter of the UNP. Accordingly I find that the applicant does not have a well-founded fear of persecution for this reason.
58. In summary available country information does not suggest that the applicant has a well-founded fear of persecution for reason of his Tamil ethnicity, or because he will be perceived to be a supporter of the UNP. I find therefore that the applicant does not have a well-founded fear of persecution for these reasons.
Religion
59. As to persecution on the basis of the applicant’s religion, this is, in my view, should be considered part of his Tamil ethnicity. I do not accept that the applicant has a fear of persecution based solely on his Hindu religion. The DFAT Country Report of 3 October 2014 states that there is little official discrimination on the basis of religion. There are no official laws or policies that discriminate on the basis of religion and no Government-sanctioned implementation of these laws and policies. DFAT also assesses that most members of religious groups in Sri Lanka are able to practise their faith unmolested. However, the risk of harassment or violence increases where practitioners attempt to proselytise or to carry out ‘unethical conversions’ which generally involves a financial inducement to convert religion.4 The applicant does not claim to fall within this group of persons, and the issue of his religion only arose in the submissions received after the hearing. I find therefore that the applicant does not have a well-founded fear of persecution for this reason.
The Tribunal then turned to the issue of the applicant having illegally left Sri Lanka and being identified as a member of a particular social group of illegal departees. The Tribunal materially found that the Immigrants and Emigrants Act was a law of general application and was not a law that was applied or enforced discriminatorily:
61. Independent evidence indicates that the applicant will be questioned at the airport, detained and investigated by Sri Lankan authorities. The applicant is unlikely to be detained for more than a few days while those investigations are carried out. The DFAT Country Report suggests that the most likely penalty for leaving Sri Lanka illegally will be a fine (unless the applicant was involved in organizing people smuggling) and that he will not be given a custodial sentence. The objects of the Sri Lankan Immigrants and Emigrants Act include regulating the departure from Sri Lanka of Sri Lankan citizens. Therefore being charged under that Act and being detained is the result of the non-discriminatory enforcement of a law of general application.
Having addressed the applicant’s claims in relation to being a failed asylum seeker and an illegal departee, the Tribunal relevantly said:
65. I have considered each of the applicant’s fears of serious harm amounting to persecution both individually and cumulatively. I do not consider that the applicant has a real chance of serious harm for any of the reasons claimed, or cumulatively, or arising on the evidence. It follows that I am not satisfied that the applicant faces a wellfounded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future and that I am not satisfied that the applicant is a refugee under s.36(2)(a) of the Act.
It is clear that the above findings were open on the material before the Tribunal and the findings cannot be said to lack in evidence and intelligible justification. It’s also clear that the Tribunal made adverse findings of fact within s.91R(1)(a), and in those circumstances there is no arguable issue of the kind identified in the WZAPN decision or in relation to the application of s.91R(2) as suggested in the application.
The Tribunal carefully addressed the issue of complimentary protection and, again, the issue of the application in the Immigrants and Emigrants Act and relevantly found as follows:
67. As discussed above, I find that the applicant may be detained for a few days when he returns to Sri Lanka, will be investigated by the authorities and charged with offence under the Immigration and Emigration Act of Sri Lanka, but that the most likely penalty is a fine, unless he was considered to be an organiser of illegal migration of people from Sri Lanka. I do not accept that these matters singularly or cumulatively constitute significant harm. I have noted above that DFAT has advised that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act, and 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 I note that the objects of the Sri Lankan Immigrants and Emigrants Act include regulating the departure from Sri Lanka of Sri Lankan citizens.8 Therefore being charged under that Act and being detained is the result of the non-discriminatory enforcement of a law of general application.
68. Having considered the applicant’s circumstances and having regard to the October 2014 DFAT country information, I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that he would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, or that he will be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
CONCLUSIONS
69. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
70. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
It was for these reasons the Tribunal upheld the decision of the delegate not to grant the applicant a protection visa.
I am satisfied that the proceedings are clearly doomed to failure and that in those circumstances there is no utility in granting any adjournment as it will only add to the cost of the parties and utilise further limited Court time.
I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street.
Associate:
Date: 27 March 2015
0
4
5