MZAAA v Minister for Immigration

[2015] FCCA 717

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAAA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 717

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – no failure by Tribunal to take into account a relevant consideration – Applicant not of sufficient concern to relevant authorities – no real chance of harm – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 91R(1)(b), 91R(2)

Applicant: MZAAA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 270 of 2014

Judgment of: Judge Hartnett

Hearing date: 11 February 2015

Delivered at: Melbourne

Delivered on: 27 March 2015

REPRESENTATION

Counsel for the Applicant: Ms Burt

Solicitors for the Applicant: Ambi Associates

Counsel for the Respondents: Mr Goodwin

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 270 of 2014

MZAAA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is a judicial review application by Amended Application filed 1 December 2014. The Applicant challenges a decision of the Refugee Review Tribunal (‘the Tribunal’) made 22 January 2014 in which the Tribunal affirmed a decision of the First Respondent’s delegate not to grant a Protection (Class XA) visa (‘the protection visa’) pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’). The Applicant seeks orders as set out in that Amended Application and requires the matter to be remitted to the Tribunal for rehearing according to law.

2. The grounds of the application with which the Applicant proceeded at hearing are as follows:-

   “1(a) The Second Respondent failed to exercise jurisdiction in that the Second Respondent failed to consider an integer of the Applicant’s claim that he would be targeted because he was a young man from Udappu or a young Tamil man from Udappu. Alternatively, the Second Respondent erred at law bv failing to properly categorise the Applicant and his claims when considering them. Further and alternatively, the reasoning of the Second Respondent was illogical in considering the Applicant’s ethnicity in isolation from his particular characteristics/social group claims (see Submissions filed  today).

   Particulars

   (1) The Applicant advanced a claim that he would be targeted as a young Tamil man from Udappu.

   (2) The Second Respondent did not consider those claims.

   (3) In paragraph [25] at [CB 192] the Second Respondent rejects, as a group, any claim where Tamil ethnicity is involved.

   (4) That characterization was unlawful and obscured the attributes particular to the Applicant. such that the attributes of being young, a Man and from Udappu were not considered.

   (5) Alternatively, to analyse the claims in this way was illogical.

   (b) Further, the Second Respondent erred by failing to take into account a relevant consideration, namely that the modus operandi of the CID when abducting LTTE suspects was to abduct them at night (see Submissions filed today).”

   The Court notes the Applicant declined (upon the hearing of the matter) to proceed with grounds 1(c) and (d) (or as set out in the Applicant’s Outline of Submissions filed 2 December 2014 grounds 3 and 4) of the Amended Application filed 1 December 2014.

3. The First Respondent, by Response filed 12 March 2014, seeks the application be dismissed and the Applicant pay the costs of the First Respondent on the grounds no jurisdictional error attends the decision of the Tribunal. The Court has before it the submissions of each party and the evidence as contained in the Court Book filed on 30 June 2014. For the reasons which follow, the Court finds for the First Respondent.

History

1. The Applicant is a citizen of Sri Lanka of Tamil ethnicity. He was born on 24 August 1988 in Udappu (North Western province). He is now aged 26 years old. He left Sri Lanka unlawfully by boat around June 2012.

2. The Applicant’s claims were set out in:-

   a)his initial Irregular Maritime Arrival Entry Interview;

   b)his Statement of Claims dated 9 September 2012 (attached to his visa application); and

   c)the submissions filed by his migration agent dated 24 September 2012 (‘the Agent’s Submissions’).

3. In both his interview notes and his Statement of Claims, the focus of the Applicant’s claim of fear of harm was his alleged harassment by the Criminal Investigations Department (‘CID’) for suspected links with the Liberation Tigers of Tamil Eelam (‘LTTE’). These supposed links were said to arise from the Applicant’s frequent trips prior to 2006 to visit his father in Mullaitivu and his profile as a young Tamil male in Udappu.

4. The Agent’s Submissions described the Applicant’s claims as follows:-

   “The essential and significant reasons why our client fears persecution are his Tamil race, his membership of particular social groups comprising Sri Lankan Tamils and Tamils from the North or East of Sri Lanka and his real and imputed political opinion arising from his race and his former residence in a predominantly Tamil region. His fear is exacerbated because he is a member of a particular social group of Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia.”

5. The nature of the claims made by the Applicant are comprehensively set out in the Decision Record of the Tribunal dated 22 January 2014 (‘Decision Record’) and in paragraph 9 therein. The Tribunal said:-

   “Detailed submissions and country information provided to the Department by the representative argue the applicant requires protection from harm arising due (individually and/or cumulatively) to his ethnicity, his imputed pro-LTTE or anti-government political opinions or membership of particular social groups arising from or characterised by: his Tamil ethnicity, age, gender, travels to the North, area of residence, his illegal departure by boat and return as a failed asylum seeker from the West/Australia/overseas. I consider this material below as it relates to the accepted evidence.”

6. The Tribunal’s essential finding, that underpinned its rejection of the Applicant’s claims, was that it did not accept that the Applicant was of concern to the Sri Lankan authorities and did not find he was imputed with pro-LTTE opinions or actions, notwithstanding his profile as a young Tamil male from Udappu (or on any basis put).

7. The findings of the Tribunal are accurately set out in the First Respondent’s Contentions of Fact and Law filed 24 December 2014 and are adopted here:-

   “12. The Tribunal considered the Applicant’s claims associated with his imputed LTTE links at [14]-[22] of its Decision. The Tribunal accepted that the applicant travelled repeatedly from Udappu to Mullaitivu prior to 2006. However, the Tribunal found that the Applicant’s ability to move without difficulty, “as a young Tamil male”, was “strongly suggestive that the authorities did not find his conduct suspicious and did not impute him with any LTTE profile”.

   13. The Tribunal gave the Applicant the benefit of the doubt that he was detained briefly and possibly questioned regarding his allegiances in 2007 during the civil war. However, the Tribunal found it highly implausible that the authorities would suspect the Applicant of having an LTTE profile after 2008 for various reasons, including:

   a) his ability to work regularly and openly from 2007;

   b) notwithstanding that the risk of abduction occurred at night, the Applicant had not had personal conduct with the CID for a long period of time prior to him leaving the country and the CID had not used its resources to locate the Applicant other than visiting his home; and

   c) the Applicant’s detention in Colombo in 2009 was for an unrelated matter and, in any event, lacked plausibility.

   14. In these circumstances, the Tribunal stated [at paragraph 22 of its Decision Record] the following:

   Even accepting that state-sanctioned abductions of people with specific adverse profiles may sometimes occur in Sri Lanka...I do not accept the applicant - in all his accepted circumstances - has any such profile such that he personally faces any real chance of serious harm (including in the forms of arbitrary abduction, detention, torture or death - in Udappu, or elsewhere, by CID or any other actor) arising from any actual or imputed LTTE connection, now or in the reasonably foreseeable future.

   15. The Tribunal considered the Applicant’s claims associated with his Tamil ethnicity at [23] to [26] of its Decision. While the Tribunal accepted that Tamils in Sri Lanka faced harassment and discrimination, it did not accept that the Applicant himself faced a fear of harm. Rather, on the basis of earlier findings, the Tribunal found that the Applicant and his family had not faced serious harm and the applicant “had access to education, work, and general freedom of movement in Udappu” [at paragraph 23 of its Decision Record].

   16. The Tribunal noted that the United Nations High Commissioner for Refugees had provided information that suggested not all Tamils faced risks of serious harm. Rather, the individual circumstances of the particular applicant was important in accessing the risk of harm.

   17. In this context, the Tribunal stated [at paragraph 22 of its Decision Record] the following:

   Given the above findings, I do not accept the applicant faces persecution as a member of any particular social group where his Tamil ethnicity is a defining characteristic. Further, there is no claim - and there is nothing in the cumulative evidence and material before me which supports the view - that the applicant faces persecution by reason of his gender and/or youth (now around 25) alone. Accordingly, I do not accept the applicant faces persecution in Sri Lanka as a member of any particular social group where his youth and/or gender alone - or in combination with his ethnicity - is a defining characteristic.

   18. The Tribunal then considered the Applicant’s claims associated with his status as a failed asylum seeker and a person who illegally departed Sri Lanka. Then, under the heading of “Further matters”, the Tribunal considered the Applicant’s geographical location and rejected that country information regarding the fear of harm of “young Tamil males” in particular areas of the country pertained to the Applicant. The Tribunal then completed an individual and cumulative consideration of the global claims of the Applicant and stated [at paragraph 41 of its Decision Record]:

   Having regard to the applicant’s individual and cumulative claims and the findings and reasons above, I find there is no real chance the applicant will be seriously harmed for any reason advanced by him, including regarding his race, real or imputed political opinion or membership of any particular social group - arising from or characterised (in any combination) by being Tamil and/or young and/or male and/or from Udappu and/or the North West and/or having travelled to the north or east and/or a person departing Sri Lanka unlawfully - including by boat - and/or his asylum claim in Australia/overseas/the West if he returns to Ski Lankan (sic) now or in the reasonably foreseeable future.”

Consideration

1. There is no merit in either ground advanced by the Applicant. It is clear when examining the Tribunal’s decision that it considered the claims as put by the Applicant; did not misconstrue those claims; and dealt with them on the basis of the evidence before it. The Tribunal’s findings were clearly open to it on that evidence which included relevant country information considered by the Tribunal, and it is not for this Court to engage in merits review. In particular, the Tribunal considered the Applicant’s claims on the basis of his age and gender, and both individually and cumulatively. There is no illogicality evident in the reasons of the Tribunal.

2. The Applicant argues in ground 1(a) of the Amended Application the Tribunal only considered the Applicant’s claim as a Tamil but not his claims based on both his age and gender or his age, gender and ethnicity in combination which were claims specific to him personally and in his circumstances.  But the Tribunal did so.

3. The Tribunal accepted that the Applicant was a young Tamil male. Notwithstanding this profile, the Tribunal found that in the particular circumstances of the Applicant, he was not of sufficient concern to the relevant authorities such that he had a real chance of harm. The Tribunal referred to “all [the] accepted circumstances” of the Applicant; found no evidence the Applicant had personally experienced abuse, harassment, victimisation, pressure or limited rights as a Tamil – to any extent which amounts to serious harm under s.91R(1)(b) of the Act, including having regard to the non-exhaustive examples of s.91R(2) of the Act. I refer to the Tribunal’s findings as referred to in these Reasons.

4. The Tribunal found further at paragraphs 30, 40 and 41 (as repeated here) of its Decision Record the following:-

   “30. For the reasons stated, I find the applicant faces no real chance of serious harm as a returning failed asylum seeker from Australia (or the West or overseas) - regardless of whether seeking asylum is conceived of either as an imputed political opinion, or as an identifying characteristic of any particular social group, in any combination with other characteristics of Tamil ethnicity, age, or area of residence in the (north-west) Puttalam district. I find information regarding the return of Tamils to areas in the north and/or east does not pertain to the situation of Tamils returning to the north-west. I have found elsewhere above that the applicant’s past travel to Mullativu between 2003 and 2006 has never resulted in serious harm to him, for any reason.

   …

   40. I find the applicant lives in Udappu in the North West and do not accept that country information provided regarding the treatment of Tamils (and young Tamil males) in the north and east – including by paramilitary groups - pertains to him. I have considered elsewhere the impact on his profile of his past travels to Mullaitivu up to 2006.

   41. Having regard to the applicant’s individual and cumulative claims and the findings and reasons above, I find there is no real chance the applicant will be seriously harmed for any reason advanced by him, including regarding his race, real or imputed political opinion or membership of any particular social group - arising from or characterised (in any combination) by being Tamil and/or young and/or male and/or from Udappu and/or the North West and/or having travelled to the north or east and/or a person departing Sri Lanka unlawfully – including by boat -  and/or his asylum claim in Australia/overseas/the West  if he returns to Sri Lankan now or in the reasonably foreseeable future. Accordingly, I find his stated fears are not objectively well-founded.”

5. As to Ground 2 of the Applicant’s Amended Application the Submissions of the First Respondent filed 24 December 2015 are apt.

6. The Tribunal did consider the modus operandi of the CID. At paragraph 17 of the Decision Record, the Tribunal stated that the Applicant “argued the risk of abduction only arose at night, and he evaded that by continuous movement and hiding”. However, the Tribunal found it implausible that the CID or other authorities would not search for the Applicant during the day during a five year period. Further, the fact that the Applicant’s family was never directly threated and the Applicant was able to move freely through the country in 2009 meant that the Applicant was not of concern to the CID or other authorities. It follows that, whether or not the modus operandi of the CID was to abduct suspects at night, the Tribunal found that the Applicant did not have a profile such that he would fear harm from the CID. This finding was open to it. There was no failure to take into account a relevant consideration including the modus operandi of the CID as urged by the Applicant.

7. In light of the dismissal of the application, costs shall follow the event.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 27 March 2015