FEDERAL CIRCUIT COURT OF AUSTRALIA
ABB15v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 740	

Catchwords: 
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.	

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958 ss. 476
Immigrants and Emigrants Act 1949 (Sri Lanka)	

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947	

Applicant:	ABB15	

First Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION	

Second Respondent	Refugee Review TRIBUNAL	

File Number:	SYG 469 of 2015	

Judgment of:	Judge Street	

Hearing date:	26 March 2015	

Date of Last Submission:	26 March 2015	

Delivered at:	Sydney	

Delivered on:	26 March 2015	

REPRESENTATION
The Applicant appeared in Person	

Solicitors for the Respondent:	Ms K. Hooper
DLA Piper	

ORDERS
(1)	Proceedings be summarily dismissed.
(2)	Applicant pay the First Respondent’s costs fixed in the sum of $1200.

(1)	
FEDERAL CIRCUIT COURT OF AUSTRALIA 
AT sydney	
SYG 469 of 2015
abb15	
Applicant

And

minister for immigration & border protection	
First Respondent

Refugee review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
1.	This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 30 January 2015 affirming the decision of the delegate not to grant the applicant a Protection (class XA visa).
2.	The application identified the following grounds:
	1. That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.
	2. More details will be provided by the legal representative in my amended application.
3.	The application under the First court date identifies:
	The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings.
4.	The Court identified to the applicant, having looked at the application and having read the decision, the Court was concerned that the application appeared not to disclose any arguable jurisdictional error.
5.	The applicant said that he would have problems if he went back to Sri Lanka.  The applicant said he had an ongoing case in Sri Lanka and the applicant said he had a friend who was arrested and has still not been released.
6.	In considering exercise of the Court’s summary jurisdiction 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 identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [24]-[25] and [59]-[60].  
7.	It is clear that the grounds identified in the application fail to disclose any arguable jurisdictional error and that there is no utility in granting any adjournment for the filing of an amended application of the proceedings that are clearly doomed to failure as they will only increase the costs of the parties and utilise further Court time.  I am satisfied that the proceedings are clearly doomed for failure for the reasons identified in this decision.
8.	The applicant applied for a Protection (Class XA) visa on 11 December 2012, which was refused on 29 July 2013.  The applicant appeared before the Tribunal to give evidence on 26 November 2014 and to present arguments and was assisted by an interpreter and was also represented in the course of the review by a registered migration agent.
9.	The Tribunal carefully in para.9 set out each of the applicant’s claims and identified an entry review in relation to his protection claims that was taken into account as well as identifying the submissions dated 25 March, 18 November, 2 December and 4 December made on behalf of the applicant.
10.	The Tribunal expressed concerns as to the applicant’s credibility and the findings that were clearly open to it:
	16.For the reasons, outlined below, the Tribunal has found the applicant’s evidence to be a generally vague, inconsistent, and lacked in significant details about fundamental aspects of his claims. In the course of the hearing, the applicant was unable to provide coherent accounts of core aspects of his claims. Those matters raise dubs about the applicant’s claims and his credibility generally.
	17. In post hearing submissions dated to December 2014, in response to the Tribunal’s concerns about a number of aspects in the applicant’s evidence, the representative noted that the applicant was extremely anxious in the course of the hearing and therefore he was unable to clearly express himself. It was further submitted that the applicant has suffered trauma whilst he was living in Sri Lanka including being hit in the back with the butt of the rifle by the CID.
	18. …The Tribunal has taken those matters into consideration, however, without independent evidence, the Tribunal does not accept that the applicant suffers from any clinical condition which the Tribunal needs to take into account when assessing his claims; the Tribunal is satisfied that the evidentiary problems highlighted before reflect poorly on the applicant’s credibility.
	22...The Tribunal indicated to the applicant that there appears to be inconsistencies in the information that has been provided in the statutory declaration in support of the applicant for a protection visa and his oral evidence.
…
	The Tribunal is not convinced; the Tribunal is of the view that the applicant’s evidence in relation to his alleged arrest in June 2009 was inconsistent raising doubts about this claim and the applicant’s general credibility.
	23. …He said he was not educated. The Tribunal is not persuaded by the applicant’s explanations and is of the view that the applicant’s evidence in relation to this claim was vague and lacked significant details raising doubts about the claim and the applicant’s a general credibility.
	24. …The Tribunal is not persuaded; the Tribunal is of the view that the inconsistency raises doubts about the applicant’s claims and credibility generally.
	25. The Tribunal asked the applicant if he could recall the day when they were arrested in May and applicant did not respond to the question; he said they were not given a dinner but bread the following day. The Tribunal confirmed that the applicant does not know the exact day in relation to this incident. 
	26. The Tribunal indicated to the applicant that his oral evidence in relation to the May 2012 incident appears to be inconsistent with the information that has been provided in the statutory declaration where it is mentioned that this occurred on 27 May 2012.
	28. The Tribunal asked the applicant if he has ever been associated with, or involved in any activities that relate to the LTTE and the application confirmed that he has never had any connections with the LTTE. 
	29. The Tribunal is of the view that the applicant was unable to provide coherent details about this claim, raising doubts about the claim and the applicant’s credibility generally. 
	30. However, the Tribunal is of the view that the applicant’s evidence in relation to the document, which is arguably a significant document in relation to the applicant’s claims, is vague and lacked insignificant details raising concerns about the document and the applicant’s credibility generally.
	31. Accordingly the Tribunal finds that the document does not corroborate the applicant’s claims.
	32. The Tribunal also finds it odd that if the applicant remains to be of any interest to the Sri Lankan authorities, that no harm has come to his family and that his wife and three children would continue to live at the same place where they had lived for many years.
 33. On his own evidence, the applicant entered and remained in the UK unlawfully for many years suggesting a certain level of willingness and disrespect for the law, raising further doubts about his credibility.
	34. It follows that the Tribunal does not accept that the applicant has been subjected to any of the claimed ill-treatment.
	35 The Tribunal accepts as plausible that the sisters son had been shot in 2008, however on the basis of the available information and in consideration of the evidence as a whole, the Tribunal is not satisfied that this is related to any of the applicant’s claims or that there is a real risk or a real chance of the applicant suffering harm on the basis of this incident.

	37. However, in consideration of the evidence as a whole, the Tribunal is satisfied that those factors do not mean that the applicant would be perceived as having any links or associations with the LTTTE or a sympathiser. In any event, credible independent country information essentially indicates that it is those who have actual or perceived strong LTTE links/sympathisers who can be targeted.
11.	The Tribunal turned to consider whether the applicant will be harmed on the basis that he is a Tamil and a failed asylum seeker or returning from a Western country or being perceived to be an LTTE sympathiser,  and, relevantly, the Tribunal found:
	37. However, in consideration of the evidence as a whole, the Tribunal is satisfied that those factors do not mean that the applicant would be perceived as having any links or associations with the LTTE or a sympathiser. In any event, credible independent country information essentially indicates that it is those who have actual or perceived strong LTTE links/sypathisers who can be targeted.
	44. The Tribunal is satisfied that credible independent country information fundamentally indicates that it is those who have actual or perceived strong LTTE links/sypathisers who can be targeted. As the applicant has no profile of being involved or suspected of being involved with the LTTE, the Tribunal does not accept that the applicant would be imputed with an adverse political opinion by the Sri Lankan authorities because he is Tamil, or he has left Sri Lanka, or that he has lived in the UK, or for any other claimed reason. On the basis of the available information, the Tribunal is not satisfied that the applicant’s attributes and profile considered individually and cumulatively mean that he would be discriminated against, or denied services, food, shelter, employment, opportunities to make a living, socioeconomic rights, education or health care. For the same reasons, the Tribunal is not satisfied that the applicant would be subjected to extortions, murder, execution, assault, torture by the Sri Lankan authorities or their allies or any other group.
45. In consideration of the evidence as a whole, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant would suffer harm on these bases or any other basis, incase of his return to Sri Lanka.
12.	The Tribunal turned to consider whether the applicant would be harmed on the basis of being a failed asylum seeker or returning from a Western country and, relevantly, found:
	57. In consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has a profile that would mean that there is a real chance that he would be harmed on his return.
13.	The Tribunal considered whether the applicant would be harmed due to his illegal departure and, relevantly, found that the Immigrants and Emigrants Act 1949 in para.69 was a law of general application applied in a non-discriminatory manner and served a legitimate purpose of dealing with people who depart their country unlawfully.
14.	It is clear in these circumstances that the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 which was overruled by the Full Court in the SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 has no arguable application.  Further, there were adverse cumulative findings, relevantly, as follows:
	69. Although the conditions of the remand cell he might be kept in would cause him to suffer discomfort and unpleasantness, on the evidence and information before it, the Tribunal does not accept that, in his particular circumstances and with his attributes, he would be persecuted for any reason, as contemplated by s.91R.
	70. Having considered the information before it, the Tribunal is not satisfied that the treatment faced by Sri Lankan returnees who have departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, amounts to persecution or gives rise to such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka. Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.
	71. Therefore, in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially and significantly for one or more of the five Convention reasons if he returns to Sri Lanka on the basis of his illegal departure, being of Tamil ethnicity, or a former resident of the UK, or being perceived as being opposed to the
 authorities, or for his illegal departure.
72. In essence, in consideration of the evidence as a whole, including the applicant’s individual circumstances either singularly or cumulatively, the Tribunal is not satisfied that the applicant faces persecution as a failed asylum seeker, for his illegal departure, for being a forced returnee, or for any other claimed reasons, either singularly or cumulatively. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant is a refugee under section 36(2)(a) of the Act.
	
15.	The Tribunal then turned to address the issue of complementary protection and, relevantly, found:
	80. In essence, the Tribunal finds that there are no 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 as a consequence of the poor conditions in prisons due to overcrowding during any period which he may spend in gaol on remand. The Tribunal finds that there is no real risk that the applicant will suffer significant harm for any other reason or reasons.
	81. On balance, on the information before it, the Tribunal is not satisfied that, the applicant, being a person who has left Sri Lanka illegally, even when considered cumulatively with what is accepted of the applicant’s claimed risk profile and the independent sources excerpted by the applicant’ representative, involves or creates a real risk of treatment amounting to significant harm as contemplated by section 36(2A) of the Act. Accordingly, the Tribunal does not accept that there are 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.
	82. 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).

	83. 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).
16.	I am satisfied that the findings of the Tribunal were open in relation to the credibility of the applicant.  The findings cannot be said to lack in evident and intelligible justification and the applicant clearly had a genuine hearing.  I am clearly satisfied the proceedings are doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  I summarily dismiss the proceedings.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street 

Associate:  

Date:  31 March 2015