SZWMO v Minister for Immigration

[2016] FCCA 2563

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWMO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2563

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming a fear of persecution in Sri Lanka – applicant not believed – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 91R

Cases cited:

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration v SZTQS [2015] FCA 1069

Minister for Immigration v WZAPN [2015] HCA 22

NAHI v Minister for Immigration [2004] FCAFC 10

SZTAL v Minister for Immigration [2015] FCCA 64

SZTAL v Minister for Immigration [2016] FCAFC 69

SZTAP v Minister for Immigration [2015] FCAFC 175
VTAG v Minister for Immigration (2005) 141 FCR 291
WZAPN v Minister for Immigration [2014] FCA 947

Applicant: SZWMO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 291 of 2015

Judgment of: Judge Driver

Hearing date: 5 October 2016

Delivered at: Sydney

Delivered on: 5 October 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K McVay of DLA Piper

ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 291 of 2015

SZWMO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 14 January 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. Background facts relating to the applicant’s claims for protection and the decision of the tribunal on them are set out in the Minister’s outline of legal submissions filed on 23 September 2016. 

3. The applicant is a male citizen of Sri Lanka, who arrived in Australia as an unauthorised maritime arrival.  The applicant claimed to fear harm in Sri Lanka and claimed that he would be physically harmed and detained by the Sri Lankan police, army or Central Intelligence Department (CID) because he is a Tamil and because he left Sri Lanka illegally.  The applicant also claimed to fear harm because of an incident where he assaulted a Sinhalese man in defence of his mother.

4. The applicant also claimed to have an imputed political opinion of support for the Liberation Tigers of Tamil Eelam (LTTE) and opposition to the Sri Lankan government and through his membership of the particular social group of failed asylum seekers returning to Sri Lanka.

5. The applicant made the following claims of past harm:

   a)in May 2011, the applicant was interrogated by Sri Lankan soldiers as to whether he was Sinhalese and not Tamil;

   b)the applicant assaulted a Sinhalese person who pushed his mother over.  The same soldiers who had interrogated him came and surrounded his house after this incident.

6. Before the Tribunal, the applicant made an additional claim that after his encounter with the soldiers, he was ordered to come to the army base the following day and failed to do so.  He then hid and spent several months in Trincomalee.  The applicant claimed that his assault of the Sinhalese man in defence of his mother prompted him to leave Sri Lanka.

The decision of the Tribunal

1. The Tribunal did not accept that the applicant had ever assaulted the Sinhalese man in defence of his mother, leading the authorities to search for him, or that the two Sri Lankan army soldiers interrogated him at gunpoint outside the hospital in 2011; nor that they ordered him to report to the army base the following day, which he failed to do[1].  This was due to the inconsistent evidence given by the applicant and the change in the basis of his claims from his visa application and Department interview to the Tribunal hearing[2].

   [1] at [20]

   [2] at [19]

2. The Tribunal did not accept that the applicant either had an altercation with the soldiers, nor that he was being pursued by authorities in relation to that alleged assault.  The Tribunal therefore did not accept that the applicant would be subjected to serious or significant harm for reasons of this Tamil ethnicity; or imputed political opinion as an LTTE supporter or opponent of the Sri Lankan government, if he returned to Sri Lanka as claimed[3].

   [3] at [26]

3. The Tribunal was not satisfied that the applicant had any particular profile such that there was a real chance of serious harm upon his arrival, even having regard to his illegal departure from Sri Lanka, and the authorities' awareness that he has applied for asylum in a Western country[4].

   [4] at [33]

4. The Tribunal was not satisfied that any problems that the applicant would face as a result of questioning, charges, cramped and uncomfortable sanitary conditions in remand were aimed at the applicant for any Convention reason. The Tribunal considered that these were factors which applied to the general population and not specifically to Tamils. The Tribunal was not satisfied that questioning, the arrest, the poor conditions in remand and the application of a penalty for illegal departure amounted to systemic and discriminatory conduct as required by s.91R(1)(c) of the Migration Act 1958 (Cth) (Migration Act)[5].

   [5] at [34]

5. The Tribunal accepted that the applicant could be held in remand, but did not accept that spending up to a fortnight in such conditions amounted to “significant harm” as defined by s.36(2A) of the Migration Act[6].

   [6] see [36]-[43]

The present proceedings

1. These proceedings began with a judicial review application filed on 5 February 2015.  The application was filed by the applicant’s then legal representatives.  I made procedural orders for the conduct of the matter on 23 February 2015.  Those orders provided the applicant with the opportunity to file and serve an amended application or additional evidence.  Neither of those opportunities were taken up.  The applicant’s lawyers ceased to act for him in February this year.  Thereafter, he has represented himself.

2. I have before me as evidence a short affidavit by the applicant, filed with the application, and the court book filed on 9 March 2015. 

3. No written submissions were prepared by or on behalf of the applicant prior to today’s hearing.

4. I invited oral submissions from the applicant today, after he had heard the oral submissions put on behalf of the Minister.  The applicant orally provided an eloquent critique of the Tribunal’s reasons.  Unfortunately, however, that critique did not specifically address the grounds of review in the application.

5. The applicant is entitled to disagree with both the outcome before the Tribunal and the Tribunal’s reasons for that outcome.  He expressed that disagreement at some length.  Regrettably for him, however, with one exception, his oral submissions did not rise above a contest over the merits of the Tribunal decision.

6. The exception is the applicant’s claim that the Tribunal mischaracterised his assertion about being interrogated by the Sri Lankan Army and then released.  The applicant asserts that the Tribunal mischaracterised this claim as an “altercation” with the army, whereas, in truth, he was simply answering questions put to him.  The solicitor for the Minister, in reply, took me to [20] of the Tribunal’s reasons[7], which satisfies me that there was no mischaracterisation of the claim, as alleged by the applicant.

   [7] Court Book (CB) 253

7. None of the grounds for review in the application establish any jurisdictional error:

   1. The Tribunal fell into jurisdictional error in making a finding on submissions not made by the applicant.

   Particulars

   a. At [29] the Tribunal accepted that DFAT does not monitor the situation for returnees, but does not accept the submissions that it relies on “no reports” to state that nothing is happening to returnees.

   2. The Tribunal considered the wrong issue of duration of remand in its assessment of whether the applicant would suffer serious or significant harm while being persecuted under the Sri Lankan Immigrants and Emigrants Act for illegal departure.

   Particulars

   a. At [31] the Tribunal accepted that DFAT and various other groups have reported that conditions in remand have been described in media reports as overcrowded and unsanitary, with a lack of access to adequate food, water and a lack of access to assistance and limited reform regarding violence and maltreatment.  However, the Tribunal considers that the weight of the evidence indicates that returnees will most likely be held for only a short period in remand and will then be bailed.

   3. The Tribunal failed to consider the lack of standardise procedures for the application and administration of the Sri Lankan Immigrants and Emigrants Act.

   Particulars

   a. A discretionary decision has to be made as to when a returnee is taken before a Magistrate for a bail hearing which will be carried out in the Sinhala language;

   b. Whether there is a family members who can attend the bail hearing in either Colombo or Negombo;

   c. Whether an assurance can be provided;

   d. A discretionary decision as to the amount of the assurance required and whether a family member can provide the assurance;

   e. If there are any problems for non-Sinhala speaking returnees and family members in participation in the bail and final hearings and how they are treated;

   f. The Magistrate in Negombo is reported to hand down the amount of fines ten times more than the Magistrate in Colombo indicating further there are no standardised procedures;

   g. The applicant will return to his home village with a conviction; and

   h. As there are no standardised procedures there is a real chance that the applicant would be treated in a systematic and discriminatory manner in the administration of the Sri Lankan Immigrants and Emigrants Act.

   4. At [37] the Tribunal considered the wrong test by applying refugee convention grounds to the complementary protection provisions.

   5. At [38] the Tribunal considered the wrong question as to whether the conditions in remand constitutes degrading treatment or punishment because it held the applicant would most likely only be held for a short period of a fortnight.

   Particulars

   a. The conditions in remand in Sri Lanka are well-known and documented and the act of holding people in such conditions is intentional and constitutes degrading treatment and punishment; and

   b. In Price v UK UK prison authorities had no intention to humiliate Ms Price but the conditions in prison caused Ms Price extreme humiliation and embarrassment.

8. The first ground fails due to a lack of evidence to support it.  In particular, the Court has no transcript available of what occurred at the Tribunal hearing.

9. The second ground fails for the reasons advanced by the Minister.  The Tribunal needed to make a qualitative assessment. 

10. The third ground, in my view, fails on the simple basis that no lack of standardised procedures (as opposed to the application of those procedures in particular cases) for the application and administration of the Sri Lankan Immigrants and Emigrants Act 1949 (Immigrants and Emigrants Act) appears from the Tribunal decision or, indeed, the applicant’s claims.

11. Ground 4 fails because the Tribunal did not consider the wrong test for complementary protection.  In particular, the Tribunal’s reference at [37][8] of its reasons to its prior findings in relation to the applicant’s protection claims under the Refugees Convention were included simply to make clear that the Tribunal’s factual findings also bore on the complementary protection findings.

    [8] CB 257

12. Ground 5 cannot succeed in the face of the decision of the Full Federal Court in SZTAL v Minister for Immigration[9]. 

    [9] [2016] FCAFC 69

13. I otherwise agree with the Minister’s submissions in relation to the grounds of review.

14. Ground 1 alleges that the Tribunal took into account an irrelevant consideration in considering a submission that was allegedly not made by the applicant, being the submission that DFAT “relies on “no reports” to state that nothing is happening to returnees”. 

15. The Tribunal at [28] of its reasons stated that it:

    has had regard to the submissions from the applicant's advisers regarding the situation for returnees, both their immediate arrival and after their return to the village.

16. It is clear from the Tribunal’s reasons that the submissions of the applicant’s representative formed the basis of its findings in relation to country information at [29]. The applicant has not filed a transcript of the hearing. In the absence of evidence to the contrary, the Minister submits and I accept that the applicant made the submissions referred to at [29] and that the Tribunal’s findings in that regard were open. It is well settled that the country information to which a tribunal has regard and the weight it gives to that information is a factual matter for that Tribunal[10].

    [10] NAHI v Minister for Immigration [2004] FCAFC 10, [11]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 64-65 (Brennan J); VTAG v Minister for Immigration (2005) 141 FCR 291, 298 [41]

17. Insofar as the first ground takes issue with the Tribunal’s reliance on country information, in preference to the applicant's submission that DFAT relies on “no reports” to state that nothing is happening to returnees, the Minister submits and I accept that this is an attempt at impermissible merits review. 

Ground 2

1. The second ground claims that the Tribunal considered the wrong issue in focusing on the length of any period of remand, rather than the conditions. 

2. I accept that, at its highest, this ground raises an allegation of error in the terms of WZAPN v Minister for Immigration[11].  This decision has been overturned by the High Court of Australia in Minister for Immigration v WZAPN[12]. The Tribunal accepted at [34] the possibility that the applicant would be held in remand, “in conditions that can be poor due to overcrowding and unsanitary conditions”, without addressing whether this amounted to “serious harm” under s.91R(1)(b).

   [11] [2014] FCA 947

   [12] [2015] HCA 22

3. However, the Tribunal found that pursuant to s.91R(1)(c), the requirement that “persecution involves systematic and discriminatory conduct” was not met. The Tribunal was not satisfied that any problems faced by the applicant due to questioning or the conditions in remand would be the result of any Convention related reason. The Tribunal found instead that any such factors were ones which would be faced by the general population at [34] The Tribunal was acting within jurisdiction in taking into account the length of any possible detention.

4. In any event, insofar as Ground 2 alleges a misapplication of the test for significant harm, the reasoning of North J in WZAPN had no application to the concept of “significant harm” in the context of a finding on complementary protection.

5. Regarding the applicant's illegal departure, the Tribunal found at [32] that, unless the applicant was a people smuggler, the most likely penalty would be a fine, but that there was no “real chance” of this occurring.  The Tribunal’s finding was that the country information considered did not indicate the departure laws in Sri Lanka would result in the discriminatory treatment of a person for a Refugees Convention reason. 

Ground 3

1. Ground 3 alleges a failure to consider a lack of standardised procedures in the application and administration of the Immigrants and Emigrants Act. 

2. The Tribunal at [30] considers the variety of circumstances in which a person might be processed under the Immigrants and Emigrants Act.  This allegation cannot be made out and to the extent that the particulars seek to align this Tribunal decision with that in Minister for Immigration v SZTQS[13], I accept that no error or breach of s.425 of the Migration Act can be established. It is clear from the Full Federal Court in SZTAP v Minister for Immigration[14], that SZTQS is a case which is confined to its particular facts. 

   [13] [2015] FCA 1069

   [14] [2015] FCAFC 175

3. The Court in SZTAP disagreed that SZTQS was on “all fours” with the appeal before it, and found at [77] that “[I]t is not necessary to consider whether or not SZTQS was correctly decided”.Importantly, the Court in SZTAP made clear that SZTQS turned on its particular facts relating to the background of that applicant prior to departure from Sri Lanka.  A further important factor confining SZTQS to its facts, at [80], was the assumption by the Full Federal Court “that providing surety involved the payment of money”, which aligned with his own background that his mother had previously paid money to secure his release from a police cell.

Ground 4

1. The fourth ground takes issue with [37] of the Tribunal decision and alleges that the Tribunal considered the “wrong test” by applying “Refugee Convention grounds to the complementary protection provisions”.

2. This cannot be factually made out.  The Tribunal specifically considered the applicant's claims under complementary protection and whether the applicant would be subject to significant harm on return to Sri Lanka.

Ground 5

1. Ground 5 alleges that the act of holding people in detention demonstrates an intention to cause extreme humiliation, which the Tribunal failed to consider.  This argument is essentially in the terms of the arguments raised in SZTAL v Minister for Immigration[15].  In that case, I held that the intention required by the statutory definition of “significant harm” is the existence of “an actual, subjective, intention on the part of the [actor] to bring about suffering”[16].  On appeal the Full Court generally endorsed my conclusions at first instance[17].  In the present case, the Tribunal found at [38]-[41] that the application of the Immigrants and Emigrants Act was not intended to cause extreme humiliation.  I accept that the Tribunal applied the correct test, and no jurisdictional error is evident from the decision. 

   [15] [2015] FCCA 64

   [16] at [49]

   [17] see SZTAL v Minister for Immigration [2016] FCAFC 69

2. The Minister notes that the Full Court’s decision in SZTAL is currently subject to a special leave application before the High Court of Australia.  The Minister submits that it is not necessary for these proceedings to be held in abeyance pending the outcome of the special leave application in SZTAL.  I accept that submission.

3. I conclude that the applicant is unable to establish that the tribunal decision is affected by any jurisdictional error.  The decision is therefore a privative clause decision, and the application must be dismissed.  I will so order.

4. In consequence of the dismissal of the application, the Minister seeks an order for costs.  Minister seeks a fixed amount of $5,100.  That is significantly below scale but reflects the relative lack of complexity in this case.  The applicant claimed impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

5. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,100.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 6 October 2016