FEDERAL CIRCUIT COURT OF AUSTRALIA
ABE15 v Minister for Immigration & Anor	[2015] FCCA 730	

Catchwords: 
MIGRATION – Refugee Review Tribunal – protection (class XA) visa – complementary protection – 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
Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958, ss.36(2)(a), 36(2)(aa), 91R(1), 476	

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:	ABE15	

First Respondent:	MINISTER FOR IMMIGRATION & BORDER PROTECTION	

Second Respondent:	Refugee review Tribunal	

File Number:	SYG 470 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 S. Lloyd
Minter Ellison 	

ORDERS
(1)	The proceedings be summarily dismissed.
(2)	Applicant to pay the First Respondent’s costs fixed in the sum of $1367. 

FEDERAL CIRCUIT COURT OF AUSTRALIA 
AT sydney	
SYG 470 of 2015
abe15	
Applicant

And

minister for immigration & border protection 	
First Respondent

Refugee review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
1.	This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the applicant seeks a Constitutional writ in respect of the decision of the Tribunal made on 5 February 2015, affirming the decision of the delegate not to grant the applicant a protection visa.   The application identifies 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. 
2.	The application under the first return date identifies:
	The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.
3.	The Court raised with the applicant that it was concerned that the application failed to identify any arguable jurisdiction error and in response to the invitation as to whether the applicant could identify any arguable error in the decision, the applicant indicated he had nothing to say. In considering exercising the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.10 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28.
4.	The grounds of the application patently fail to identify any argument legal error.  It is not appropriate to grant an adjournment where there is no utility in doing so.  To the extent that the application identifies a desire to obtain a legal representative and amend the application, I am satisfied that the proceedings are doomed to failure and that there is no utility in doing so and that it will only unnecessarily add to the costs of the parties and utilise important Court time.  
5.	The applicant applied for a protection visa on 18 December 2012.  It is not in dispute that he is a national of Sri Lanka and a Tamil.  The Tribunal identified the material that was adduced before the delegate and the Tribunal conducted a hearing on 21 January 2015 of which the applicant attended with the benefit of an interpreter and an advisor from Melbourne via telephone.
6.	The Tribunal carefully identified the applicant’s claims and, relevantly, at para.10 said:
	10. The applicant has presented his claims with reasonable consistency, and they were accepted in their entirety by the delegate, who refused the application on the basis that the possibility that the applicant would face harm from Sinhalese fishermen or the army in his area was remote; and that he did not face persecution or significant harm on the basis of any of the other claims put forward. 
7.	The Tribunal raised the issue of the applicant being able to remain safely in Sri Lanka for about three months:
	17. I put to him that the fact that he had remained safely in Sri Lanka without incident for three months following the threat by the soldier might indicate that he had no intention of acting on that threat, and that there was no real chance the applicant would face harm, as he feared. He said that sometimes they leave it for a while before they make a problem. After a break during which he consulted with his representative, the applicant stated that following the threat by the soldier he did not go out very much and fished in a different place, at night. He said that he earned less than he had before, roughly half to two thirds of his previous income. He said that just because they did not do anything to him for three months does not mean that nothing will happen; they can do something to him at any time, even take his life. 
8.	The Tribunal carefully identified the advisor’s submissions on behalf of the applicant and, relevantly, made the following findings:
	28. Several of the reports refer specifically to the situation of Tamil women, to political activists and students, and to people considered to have real links with the LTTE. As discussed below, there is no plausible suggestion in this case that the applicant is, or would be viewed as, a political activist; he is not a student or a woman; he does not claim to have had any association with the LTTE, and as discussed below, I do not consider that the Sri Lankan authorities suspect that he has, or had any such connection. The reports also refer to the mistreatment of fishermen by the Sri Lankan military, but one report dates from 2007, during the war; another refers to fishermen from Tamil Nadu in India who were fishing illegally in Sri Lankan waters; and one refers to problems on the east coast of Sri Lanka. In these circumstances, these reports are not particularly helpful in assessing the applicant’s specific claims. 
	29. Also, many of the reports referred to by the applicant regarding the torture and mistreatment of Tamils, including LTTE members and supporters or those suspected of being so, date from the years immediately after the end of the civil war in May 2009. Independent information indicates that the situation is improving; this would seem to be supported by the return to Sri Lanka of more than one thousand asylum seekers from Western countries since 2012, with few credible reported cases of returnees having been subjected to persecution or significant harm on return, unless the individuals concerned had actual or suspected LTTE connections or activity, or were involved in criminal activity. As discussed further below, the examples cited of Sri Lankans who have been harmed on returning to that country involve people whose circumstances are not similar to those of the applicant; for example, several people suspected of having been involved in people smuggling have been detained for lengthy periods and mistreated; as have people with actual links to the LTTE. 
	30. The available information, including that referred to on behalf of the applicant, indicates that some Tamils remain at risk of persecution or significant harm. The issue for me to decide, however, is whether this particular applicant has a well-founded fear of Convention persecution; or whether there are 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. 
9.	The Tribunal identified concern as to the credibility of the applicant, and I am satisfied that the findings that the Tribunal made in respect of the credit of the applicant were open.  Relevantly, the Tribunal said:
	32. Some of the applicant's evidence was not plausible or credible. For example, when asked about his passport, which was issued in 2010, he said that he obtained it for use as an identity document. When asked why he needed a passport for this purpose, given that he had a national identity card, he said that sometimes a passport was useful if he lost his ID card. He also sought to suggest that he obtained the passport because he intended to travel to Italy, but gave evidence that this trip was planned in early 2012. I consider the applicant's evidence on this issue to be unconvincing, and suspect that he obtained a passport in 2010 because he intended to leave Sri Lanka at that time - well before the events which he claims gave rise to his need to depart in June 2012. 
	33. Another matter about which I have concerns is his claimed experiences with the army in [U]. I have information which indicates that in fact there is no army base in [U]. When asked to describe the base, the applicant's evidence was extremely vague; he essentially stated that he did not know what lay behind the fence surrounding the base, a statement which I find extremely difficult to believe. His response that he did not know whether soldiers from the base were responsible for the questioning that occurred after the war also seems implausible, suggesting either that the questioning may not have occurred, or that there was no army base in the town, because I would expect that he would have known whether soldiers from that base were responsible for questioning residents of the town. 
	… 
	35. I accept that the applicant was involved in the incident in February 2012, when after an altercation with Sinhalese fishermen, he was slapped by an army officer. I find that this was a minor assault which of itself, as an isolated and exceptional incident, does not constitute serious or significant harm. 
	…
	37. This finding about the risk of future harm is supported by the applicant's evidence that he remained in his usual place of residence for three months after the threat was made without suffering further harm or further threatening conduct of any kind related to the earlier incident. This indicates, in my view, that the soldier in fact had no intention of harming the applicant, as he had ample opportunity to do so. While the applicant stated that after the threat he kept a low profile and fished in a different location, I do not consider that this would have been sufficient to avoid any real risk of harm, had one existed, as the officer knew where he lived and could have easily found him had he wished to make good his threat. I have considered the applicant's claim that the soldier could do something to him at any time, and might choose to wait one year or more to harm the applicant; this is true, but in my view the applicant's account of the incident and subsequent events leading up to his departure, indicates to me that his fear of suffering further serious harm from the soldier in consequence of his threat is speculative and remote. 
	…
	39. In these circumstances, I do not accept that the applicant has experienced serious harm, either in the act of assault or the subsequent threat, amounting to persecution.
	…
	42. I accept that the applicant experienced harassment and difficulties with Sinhalese fishermen when engaged in his usual occupation as a fisherman prior to his departure from Sri Lanka. Given that he and the other fishermen continued to work without experiencing actual harm, I am not satisfied that the harm suffered by the applicant at the hands of Sinhalese fishermen prior to his departure constitutes any of the forms of serious harm specified in s.91R of the Act as constituting persecution, including any form of economic hardship or denial of capacity to earn a livelihood threatening the applicant's capacity to subsist; or significant physical harassment or mistreatment; or a threat to his life, in the sense of a real as opposed to an empty threat. While the list of harms constituting serious harm in s.91R is not exhaustive, I find that the mistreatment experienced by the applicant does not amount to persecutory harm of any other kind. Nor am I satisfied, on the basis of the available information, that there is a real chance that the applicant would be subjected to more serious harm, in the reasonably foreseeable future, that might amount to persecution. 
10.	The Tribunal turned to the applicant’s Tamil ethnicity to consider whether or not there was a well-founded fear of persecution and relevantly found:
	46. Advice from other sources indicates that Tamils suffer discrimination of various kinds, including some language difficulties when dealing with authorities. They are more likely to suffer human rights abuses, but this in turn is more likely if they are suspected of LTTE involvement. The Northern and Eastern Provinces are heavily militarised, although reports indicate that the highly oppressive monitoring and registration regime in place just after the war is being eased. The available information does not indicate that Tamils in general suffer discrimination so serious as to amount to persecution, including any of the non-exhaustive list of forms of serious harm specified in s.91R of the Act. Having regard to the independent information, and to the individual circumstances of this applicant, I am not satisfied that there is a real chance that he faces persecution on return to Sri Lanka for reason of his Tamil ethnicity. 
11.	In relation to the alleged LTTE connections, the Tribunal made the following findings:
	48. On the basis of the applicant's evidence, I find that he does not have any links or connection with the LTTE. His evidence about his past experiences indicates, and I find, that he is not regarded by the Sri Lankan authorities as having any connection with the LTTE, or of being under suspicion because of any imputed connection with the LTTE. Although his evidence was very vague, I accept that the applicant was detained several times during the civil war; country information indicates that he may have been caught up in the cordon and search operations conducted by the military in [U] at that time. The evidence does not suggest that the applicant was personally targeted; it appears that he was simply caught up in general security measures in the particular area. The applicant does not claim to have been harmed during these detentions, and I am satisfied that the fact that he was released after a few hours on each occasion indicates that the authorities had, and have, no ongoing concerns about any possible connection with the LTTE. 
	49. While the applicant's evidence about events post-war was vague, and at the hearing he appeared to resist explicitly stating that he had been questioned which leads me to have some doubts as to whether he was, I am prepared to accept that the applicant was subjected to identity checks and brief questioning on a few occasions after the end of the war. While he was vague in his oral evidence about when these occasions were, his written statement says that the last occasion was in 2011 and I accept that this is the case; independent information supports a conclusion that such monitoring has diminished in the years since the end of the war. I do not consider that these incidents indicate that the applicant has a profile as an actual or suspected LTTE supporter, member or activist, either past or present. The applicant's evidence about his past experiences indicates and I find that the authorities do not consider the applicant to be a person of any concern or interest due to actual or suspected LTTE activity. 
	50. I find that the applicant is not at risk of harm of any kind in Sri Lanka because of real or suspected links to the LTTE. 
12.	In relation to the expressed fears in respect of Sinhalese fisherman and army personnel, the Tribunal relevantly found:
	52. I consider that the risk of harm to which the applicant claims to be thus exposed is remote and speculative. In my view, his evidence does not indicate that there exists such a degree of enmity or a desire to harm him on the part of either the fishermen or the military, that they would make such a false accusation. Nor does the evidence indicate that this accusation would be taken seriously by the relevant authorities, given that based on his history and past experiences, there is clearly no indication of any past involvement, or suspected involvement with the LTTE. 
13.	In relation to involuntary returning as a failed asylum seeker, the Tribunal found as follows:
	53. I do not accept that the applicant has a well-founded fear of persecution, or that there is a real risk that he would face significant harm on return to Sri Lanka as a failed Tamil asylum seeker. There is no credible information before me to support a finding that failed asylum seekers (including those who are also Tamils, Tamil males, young Tamil males, Tamil fishermen, Tamil fishermen from [U], people who have spent time in a Western country, people who departed illegally) are, for any of those reasons alone or in combination, imputed with a pro-LTTE opinion, or suspected to have been involved, previously or currently, in supporting the LTTE. Independent information from a range of sources supports this conclusion 14. . I find that there is nothing in the applicant's background or circumstances which might lead to him being imputed with an LTTE profile, even in conjunction with his status as a failed Tamil asylum seeker or other personal characteristics. 
14.	In respect of the Immigrants and Emigrants Act 1949, the Tribunal relevantly found in para.55 that it was a law of general application and was not applied on a discriminatory basis, and it is clear that the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 has been overruled; see SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40. In any event, in the present case, there were relevant adverse findings within s.91R(1).  That means the decision in WZAPN was clearly distinguishable.  
15.	The Tribunal found:
	60. I accept that the situation may be different for returnees who have real or perceived associations with the LTTE either in Sri Lanka or in the Tamil diaspora, or who may have been involved in criminal activities in Sri Lanka, including people smuggling. Such people may be detained for longer periods on return, and there are reports - including those provided on behalf of the applicant - that some have been mistreated and subjected to torture. However, there is no evidence before me to suggest that this applicant has outstanding criminal charges, or is of interest in relation to any criminal activity. As set out above, I do not accept that the applicant has an actual or perceived association with the LTTE. As discussed above, I do not accept that all failed Tamil asylum seekers are imputed with anti- government or pro-LTTE political opinions. After assessing all the evidence and the applicant's circumstances as a whole I find that the applicant will not be imputed with an anti- government political opinion or imputed to be a supporter of the LTTE for any reason, including as a failed asylum seeker, on return to Sri Lanka. I do not consider that the applicant would be subjected to a harsher discriminatory penalty for these, or any other reasons. I am therefore satisfied that the applicant does not face a real chance of persecution for a Convention reason when being processed in Sri Lanka as a returned Tamil failed asylum seeker. 
	61. I note that some information indicates that returning Tamil failed asylum seekers may be subjected to adverse attention from the authorities some months after their return, despite having been able to pass through the airport procedures. The available information also indicates that those persons of interest to the Sri Lankan authorities are those with certain links or connections with the LTTE; some information indicates that it is only those viewed as a real threat to the unitary state, or likely to be able to be involved in reviving the LTTE who may be at risk. As I have found that this applicant has no actual or suspected links with the LTTE, I find that he is not in the category of returnees who face a real chance or risk of harm at any point after returning to Sri Lanka, either at the airport or when returning to [U]. 
	61. I have considered the applicant's claims individually and cumulatively. That is, I have taken into account the cumulative effect on the applicant of the difficulties in earning a living as a fisherman, the mistreatment he has suffered from Sinhalese fishermen and army personnel in his village, and discrimination against Tamils by Sinhalese civilians and government security authorities which may include suspicion of past or present involvement with the LTTE. After assessing all the evidence and considering the applicant's claims on this cumulative basis, I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in the reasonably foreseeable future in Sri Lanka. Although I have no doubt that his life will be difficult, I. do not consider that any of the forms of harm he has suffered previously, even considered together, rises to the threshold for serious harm amounting to persecution; nor am I satisfied that there is a real chance that the applicant would face more serious harm in the reasonably foreseeable future that might amount to persecution. [sic]
	62. 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). 
16.	The Tribunal turned to the issue of complementary protection and, relevantly, made findings as follows:
	70. I accept that some prisoners and detainees are at risk of mistreatment. However, in recent years there have been a large number of involuntary returnees to Sri Lanka, including Tamil males who unsuccessfully sought asylum in Australia as well as other Western countries. There has been a significant level of interest in such persons both from the media and human rights organisations. However, there have been no credible or substantiated reports of persons such as the applicant suffering significant harm during any period of detention consequent upon their involuntary return. The reports provided by the applicant's representative deal with this issue, and the examples cited of people mistreated on return bear no similarity, in my view, to the applicant's circumstances. Reported cases, as discussed above, include the mistreatment of a man who had returned from Australia but had not sought asylum and a man who had actually provided services to the LTTE. The reports refer to returnees being investigated on return to establish whether they had links to militant groups, consistent with advice from other sources including DFAT. As discussed elsewhere, I do not consider that there is a real chance that this applicant, given his profile, is at risk of suffering significant harm as part of this process of investigation, or any judicial process flowing from his illegal departure from Sri Lanka. I am not satisfied that there is a real risk that the applicant will be subjected to torture, or any other form of physical mistreatment amounting to significant harm - specifically, cruel or inhuman treatment or punishment or degrading treatment or punishment - when he is questioned at the airport or during any period which he may spend in prison or detention on remand upon his return. While the applicant claimed that he will be unable to pay the fine, having considered the information about the likely amount of the fine, and about the applicant's financial circumstances, I do not accept that the applicant would be unable to pay it, so that he would face a longer than usual period in custody. Nor do I consider that the scale of the fine amounts to significant harm. The available information indicates, and I find that, to date, a custodial sentence has never been imposed on illegal returnees such as the applicant. I am not satisfied that there is a real risk that this applicant faces a custodial sentence of five years in prison for having departed Sri Lanka illegally. 
	71. I accept that some Tamils may face an elevated risk of certain forms of significant harm in Sri Lanka. However, for the reasons discussed above, I do not consider that the applicant faces harm of any kind for any of the reasons put forward, should he return to Sri Lanka. In so finding, I have considered his claims singularly and cumulatively but am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to a receiving country, namely Sri Lanka, that there is a real risk he will suffer significant harm. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act. 
	…
	74. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), but I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). 
17.	It is clear that the findings made by the Tribunal were open and it cannot be said the findings lack an evident and intelligible justification.  It was clear that the applicant had a genuine hearing and I am satisfied the proceedings are clearly doomed to failure.  I am clearly satisfied the proceedings had no reasonable prospect of success.  The proceedings are summarily dismissed.
18.	I order the applicant to pay the first respondent’s costs, fixed in the amount of $1367.  
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street 

Associate:  

Date:  31 March 2015