MZAAA v Minister for Immigration and Border Protection

[2015] FCA 943

FEDERAL COURT OF AUSTRALIA

MZAAA v Minister for Immigration and Border Protection [2015] FCA 943

Citation:	MZAAA v Minister for Immigration and Border Protection [2015] FCA 943
Appeal from:	MZAAA v Minister for Immigration [2015] FCCA 717
Parties:	MZAAA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 198 of 2015
Judge:	MORTIMER J
Date of judgment:	26 August 2015
Catchwords:	MIGRATION – appeal from Federal Circuit Court decision dismissing application for judicial review of Refugee Review Tribunal decision – whether Tribunal failed to consider or misconstrued claim to fear harm as young Tamil male – whether Tribunal asked itself the wrong question
Cases cited:	Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
Date of hearing:	24 August 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	30
Counsel for the Appellant:	Ms A Burt
Solicitor for the Appellant:	Ambi Associates
Counsel for the First Respondent:	Mr T Goodwin
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice, save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 198 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZAAA
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	26 AUGUST 2015
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 198 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZAAA
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MORTIMER J
DATE:	26 AUGUST 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant is a young Tamil man and a national of Sri Lanka who arrived in Australia by boat in June 2012.  On 22 January 2014, the Refugee Review Tribunal affirmed the decision of the first respondent not to grant the appellant a Protection (Class XA) visa.  The appellant appeals from the decision of the Federal Circuit Court dated 27 March 2015 refusing his application for judicial review of the Tribunal’s decision.  

2. In essence, the appellant contends that he made a claim to fear serious or significant harm as a young Tamil male.  He submits the Tribunal failed to consider or misconstrued that claim, or asked itself the wrong question in dealing with that claim.  The first respondent contends that his claims before the Tribunal were made primarily on the basis of his Tamil ethnicity or imputed political opinion, but that nevertheless the Tribunal did actively and appropriately consider his claim to fear harm as a young Tamil male and made findings open to it.   

3. For the reasons that follow, the Minister’s submissions should be accepted and the appeal dismissed.

   THE TRIBUNAL’S DECISION

4. The Tribunal described (at [9] of its decision record) the appellant’s claims in the following way:

   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.

5. The Tribunal did not accept there was any real chance the appellant would be imputed with a pro-LTTE political opinion on return to Sri Lanka. It accepted the appellant’s evidence that from 2003 to 2006 he travelled repeatedly from his home village to the fishing village where his father worked as a fisherman and found (at [15]) “the applicant’s ability – as a young Tamil male – to move without difficulty through checkpoints, from the north-west to the north during this period very strongly suggestive that the authorities did not find his conduct suspicious and did not impute him with any LTTE profile during the period up to 2006.”

6. The Tribunal accepted (at [16]) that the appellant had been detained briefly and questioned in his home village in 2007, to assess his background, possibly occasionally questioned after that time and warned not to leave the area, describing these findings as extending him “the benefit of the doubt”.  The Tribunal did not accept the appellant had been of recurrent interest to the Sri Lankan CID authorities after 2008.  The Tribunal considered “the intensity of CID’s stated interest in him after 2007 – and failed stated attempts to abduct him – fundamentally implausible given the applicant’s stated ability to work regularly and openly from around 2007 to 2012” (at [17]).  The Tribunal noted inconsistencies between the appellant’s account to the Department of Immigration (as it then was) and his evidence at the hearing, and considered aspects of his evidence embellished and unreliable.

7. The Tribunal also did not accept that the appellant would face a real chance of serious harm by reason of his Tamil ethnicity, notwithstanding it accepted that harassment and discrimination against Tamils did occur in Sri Lanka.

8. In this appeal, the appellant seeks to rely in particular on the Tribunal’s findings at [25] of its decision record:

   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.

   (Emphasis added.)

9. I return to this below, but it is this finding which features large in the appellant’s contentions of jurisdictional error.

10. The Tribunal also found the appellant faced no real chance of serious harm either as a failed asylum seeker or on account of his illegal departure.

11. At [40]-[41], under the heading “Further matters”, the Tribunal found:

    I find the applicant lives in [redacted] 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 [his father’s fishing village] up to 2006.

    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 [redacted] 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.

12. Finally, the Tribunal considered whether the appellant satisfied the requirements for complementary protection, and concluded he did not.

    PROCEEDINGS BEFORE THE FEDERAL CIRCUIT COURT

13. The appellant lodged an application for review of the Tribunal’s decision on 18 September 2013.  Only one of the review grounds relied upon by the appellant before the Federal Circuit Court is repeated on this appeal.  That ground, as expressed in the appellant’s amended notice of appeal dated 1 December 2014, was that:

    (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 [redacted] or a young Tamil man from [redacted]. Alternatively, the Second Respondent erred at law by 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 [redacted].

    (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 [redacted] were not considered.

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

14. The Federal Circuit Court rejected that ground of appeal:

    11.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.

    12.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.

    13.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.

15. The findings referred to by the Federal Circuit Court were those at [30], [40] and [41] of the Tribunal’s decision record (of which [40]-[41] are set out above at [11] of these reasons).  Paragraph [30] of the Tribunal’s decision record read as follows: 

    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 [his father’s fishing village] between 2003 and 2006 has never resulted in serious harm to him, for any reason.

    THE APPEAL TO THIS COURT

16. The appellant’s notice of appeal to this Court as filed raised a single ground of appeal:

    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 [redacted], or a young Tamil man from [redacted]. Alternatively, the Second Respondent erred at law by 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.

17. The appellant foreshadowed in his written outline of submissions an application to add a new ground. He sought to characterise the jurisdictional error as the Tribunal having asked itself the wrong question in dealing with the appellant’s claim. 

18. The Minister neither consented to nor opposed that grant of leave. He contends, correctly, that despite the amendment the essential complaint of the appellant remains the same.

19. The appellant was granted leave at the hearing of the appeal to rely instead on the following grounds:

    The Second Respondent asked the wrong questions when the Second Respondent asked:

    (a)Whether the Appellant faced persecution as a member of any particular social group where his Tamil ethnicity is a defining characteristic; and,

    (b)Whether the Appellant had advanced a claim that he would be targeted because of his youth or gender alone.

    The Second Respondent erred at law by failing to properly categorise the Appellant’s claims.

    As a result, the Second Respondent failed to ask the right question and 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, or a young Tamil man.

    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.

    (Emphasis in original.)

    CONSIDERATION

20. It is true that, in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 at [77], Gummow and Hayne JJ emphasised the need for decision-makers on protection claims to give “proper attention to the accuracy or applicability of the class chosen”, and (at [78]) warned against the dangers of decision-makers engaging in classifications which paid insufficient attention to the “essentially individual and fact-specific inquiry which must be made”.

21. The appellant’s submissions identified the error here as the Tribunal failing to appreciate that the appellant was, at base, claiming to fall into a social group of young Tamil males, rather than claiming that each of those attributes, alone, put him at risk of persecution. Thus, the appellant submitted:

    To put this even more simply a ‘young Tamil male’ is a distinct conceptual class, different to the class that is arrived at by adding the predicates applicable to the young, to the predicates applicable to males to the predicates applicable to Tamils.

22. I do not accept the submissions that the Tribunal failed to examine the risk of persecution to the appellant based on his possession of all three attributes of being young, male and a Tamil. It is true the Tribunal does not identify a social group comprising people with these attributes but that is, in my opinion, more a function of how the appellant’s claims were put to the Tribunal.

23. While the Minister is correct to submit that most of the material submitted on behalf of the appellant by his representative to the Tribunal centred on the appellant’s ethnicity, as a Tamil, without other attributes, it might be said, taking a somewhat generous approach to the appellant’s claims, that a claim that he might be targeted because he was young, male and a Tamil arose on the material and needed to be considered by the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58], [60] and [63]. I say “might” because in my opinion this case is on the margins of an NABE kind of analysis.

24. This is not a situation where an assertion by an applicant, albeit made briefly either in writing or orally, is backed up by considerable country information, and therefore one can expect the tribunal to have examined the issue squarely. Nor is this a case where an applicant has gone into some detail about a claim that she or he has particular attributes and the country information is sparse, but nevertheless the way the applicant has put the claim requires the decision-maker to consider it. This is a situation where the claim was made in, essentially, one line by the appellant, and only in relation to past persecution in 2007 (as put in his statement of claims, “many Tamil young boys had been targeted and abducted by the CID in similar way”), and where the country information relied on seemed also to say very little.

25. The way the Tribunal looked at the risk to the appellant given a combination of attributes, including being young and male, and Tamil, was apparent at various parts of its decision: see for example [9], [15], [28], [30], [40], [41] and [46]. This last finding at [46] appears in the Tribunal’s consideration of complementary protection issues, but in my opinion it indicates the Tribunal was alive to the need to consider what risks the appellant faced as a young Tamil male returning to Sri Lanka. As the Minister submitted, when describing its approach to the appellant’s claimed attributes at [9], the Tribunal did identify a list of attributes as relating to the appellant’s membership of social groups. It did so in quite a summary way, it must be accepted, and the lack of delineation of various social groups is undesirable. But read with the whole of the reasons, it is not in my opinion indicative of the Tribunal’s statutory task miscarrying.

26. There are also findings such as those in [21] about the appellant’s particular “identity and background” which indicate the Tribunal was looking at the appellant’s individual circumstances.

27. Paragraph [25] of the Tribunal’s reasons, which I have extracted above, was a focus of the appellant’s submissions. It appears under a heading “Tamil ethnicity”. It is something of a “rolled up” finding, and indeed encompasses several different ways of looking at the appellant’s claims. As I have said, I accept the Minister’s submissions that the appellant's ethnicity as a Tamil was the principal focus of the submissions made on his behalf, and the country information that was emphasised. Nevertheless, reading the decision as a whole and without focusing too much on what might be said to be a rolled up finding in [25], I am not persuaded the Tribunal has failed to examine the risks which might be faced by the appellant as a young Tamil male. On the material before it, in my opinion, for the Tribunal to describe the appellant’s Tamil ethnicity as the “defining characteristic” of his claims was open to it, and it was permissible for it to focus on that aspect of the appellant’s claims, without, as I have found, ignoring what he had said about other attributes of age and gender.

1. It can be accepted that the last sentence of [25] is badly expressed, and unclear. What function the word “alone” is intended to perform in that sentence is not apparent. The sentence seems more intended to reflect the Tribunal summarising its views about the “combination” of the appellant’s attributes as a Tamil, and as a male and as a young person. However the sentence should not be read in isolation from the remainder of the Tribunal’s reasons, which, in my opinion, sufficiently demonstrate the Tribunal considered the risks to the appellant as a young Tamil male, if he were to return to Sri Lanka.

2. The submissions made on behalf of the appellant maintained, although faintly, an attack on the Tribunal’s reasoning process as illogical. This contention again focused on [25] of the Tribunal’s reasons. The appellant contended it was illogical for the Tribunal to consider all social groups involving Tamil ethnicity without separating those groups out by reason of their particular attributes, unless the Tribunal was finding (contrary to the evidence it otherwise accepted) that all Tamils were safe. As I have noted, the last sentence of [25] is poorly expressed. However, reading the reasons as a whole I see nothing in them to suggest want of logic or rationality in the way the Tribunal stepped through its findings about the appellant, the applicable country information and its statutory task of determining the nature, level and source of the risks facing the appellant if he were returned to Sri Lanka.

   Conclusion

3. The appeal must be dismissed. There is nothing in the material to suggest anything other than the usual order as to costs is appropriate.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

Associate: 

Dated:  26 August 2015