MZAAM v Minister for Immigration
[2015] FCCA 79
•27 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAAM v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 79 |
| Catchwords: MIGRATION – Refugee Review Tribunal – application for protection visa – whether Tribunal considered claims – whether Tribunal afforded the applicant procedural fairness. |
| Legislation: Migration Act 1958, ss.424A, 424A(3)(a), 425 |
| Applicant: | MZAAM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 314 of 2014 |
| Judgment of: | Judge Riley |
| Hearing date: | 13 November 2014 |
| Date of last submission: | 13 November 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 27 January 2015 |
REPRESENTATION
| Counsel for the applicant: | The applicant appeared in person |
| Solicitors for the applicant: | The applicant was not represented |
| Counsel for the first respondent: | Liam Brown |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The application filed on 24 February 2014 and amended on 2 October 2014 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,550.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 314 of 2014
| MZAAM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal affirming a decision not to grant the applicant a protection visa. The applicant was an irregular maritime arrival. He was held at Scherger Immigration Detention Centre.
Vrachnas Lawyers assisted the applicant with his original application to the Minister for a protection visa and assisted the applicant before the Tribunal. However, the applicant was unrepresented before this court.
The applicant’s claims
The applicant claimed in a statutory declaration made on 14 September 2012 that:
a)he was a Sri Lankan citizen, born in the eastern province;
b)he was 26 years old, of Tamil ethnicity and Hindu religion;
c)he lived in Kalmunai City except for the period 2001 to 2011;
d)from 2001 to 2009, the applicant lived in Colombo where he undertook an apprenticeship as a goldsmith and later worked as a qualified goldsmith, and later undertook an informal mechanical apprenticeship;
e)from 2009 until 2011 the applicant worked in Iraq as a contractor for the US Army as a bus driver and bus mechanic;
f)the applicant left Sri Lanka on 11 May 2012 and arrived in Australia on 28 May 2012;
g)the applicant left Sri Lanka because he had received death threats and was in fear for his life;
h)an unknown person telephoned him and asked him to meet him at a temple;
i)the applicant feared that he would be killed if he attended the meeting;
j)in 2000, the applicant was abducted by the LTTE and held for one week;
k)the applicant was released after he refused to eat;
l)it was at that time common for young boys to be abducted and pressed into service fighting with the LTTE;
m)about one week after the applicant’s release, he was summoned to attend the Sri Lankan army camp;
n)he was interrogated at gunpoint about why he was released by the LTTE and whether he was a spy;
o)the applicant was released by the army but they continued to monitor him and he had to report his movements to them;
p)his parents arranged for him to move to Colombo;
q)the applicant was abducted again in 2008 in Kulmanai by an unknown group of men who spoke Sinhalese;
r)the applicant had returned to Kulmanai for a Hindu festival;
s)the applicant was blindfolded and taken to a room where he was accused of being part of the LTTE;
t)he was bashed with poles and beaten;
u)he received internal injuries but suffered no broken bones;
v)the applicant was released when the local pastor intervened at the applicant’s family’s request and appealed to the kidnappers through the local police;
w)the kidnappers were from the TMVP group who are a local paramilitary group connected to the army;
x)the applicant was assisted by an agent to flee to Iraq;
y)the applicant returned to Sri Lanka in October 2011;
z)he received the threatening telephone call in January 2012;
aa)he believed the call was from someone connected to the TMVP;
bb)his parents told him that his uncle had received a similar telephone call in 1997 and had been shot dead;
cc)the applicant’s parents helped him to flee to Australia;
dd)the applicant said that he feared that he would be kidnapped by the TMVP or the army or another Sri Lankan authority who suspected that he was an LTTE supporter or member; and
ee)he feared that he would be arrested and interrogated for leaving his country illegally and might be tortured and imprisoned.
The applicant’s lawyers filed a written submission dated 28 September 2012 in which it was submitted that the applicant faced persecution on the basis of:
a)his Tamil race;
b)his real or imputed political opinion arising from his race and former residence in a predominantly Tamil region; and
c)his membership of particular social groups consisting of “Sri Lankan Tamils” and “Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia”.
The delegate’s decision
The delegate accepted the applicant’s claims to have been abducted by the LTTE in 2000 and accepted that he may have been abducted in 2008 by the TMVP. However, the delegate did not accept that the applicant would be targeted to the extent he claimed.
The Tribunal’s reasons
The Tribunal accepted that:
a)the applicant was a Sri Lankan Tamil from Kalmunai;
b)the applicant’s uncle received a telephone call and was later killed;
c)the applicant was abducted by the LTTE in 2000 for the purpose of pressing him into service but was released after a week because he was young;
d)after being released by the LTTE, he was taken to an army camp and interrogated; and
e)his family sent him to Colombo for his safety.
The Tribunal considered that the facts that the applicant was allowed to leave the village and that he had no problems in Colombo indicated that he was of no interest to the authorities.
The Tribunal did not accept that the applicant was kidnapped in 2008 by the TMVP or any other group. The Tribunal found it implausible that the applicant would have been arrested in 2008 because of a claimed abduction by the LTTE in 2000 when he was 14 years old and because of some minimal contact at festivals with members of the LTTE in the interim.
The Tribunal also noted that, in his written claims about the 2008 kidnapping, the applicant specifically said that he did not suffer any broken bones. However, in his oral evidence to the Tribunal, the applicant said he suffered a fractured ankle.
The Tribunal accepted that the applicant travelled to Iraq from 2009 to 2011. However, the Tribunal considered that the applicant did so for work reasons rather than to escape Sri Lanka to be safe.
The Tribunal did not accept that the applicant received a threatening telephone call in January 2012, as the main motivation for the alleged telephone call was the alleged kidnapping in 2008. The alternate motivation put forward by the applicant was extortion. However the Tribunal did not accept that claim to be plausible.
The Tribunal considered that the country information available to it did not indicate that being a Tamil, or a Tamil from the east, or a young Tamil male gave rise to a risk profile in present-day Sri Lanka. The Tribunal found that country information did not support the claim that being a Tamil who formerly resided in a predominantly Tamil region created a risk profile or an imputed pro-LTTE opinion. The Tribunal did not accept that the applicant would be imputed with an LTTE connection on return to Sri Lanka simply because he was a Tamil, from the east or because of his youth or gender or a combination of those characteristics.
The Tribunal did not accept that the applicant would be imputed with a pro-LTTE political opinion as a result of having been abducted by the LTTE in 2000 or as a result of speaking with LTTE operatives during a festival in about 2004 or 2005. The Tribunal considered that the applicant was of no adverse interest to the authorities as demonstrated by the fact that he was able to leave his village and live in Colombo.
The Tribunal did not accept that the applicant faced a real chance of serious harm at the hands of the authorities or linked paramilitary groups on the basis of the applicant’s Tamil ethnicity, being a Tamil from the east, his membership of a particular social group consisting of Sri Lankan Tamils or any real or imputed pro-LTTE political opinion. The Tribunal did not accept that there was a real risk that the applicant would suffer significant harm for reasons of his Tamil ethnicity, his profile as a Sri Lankan Tamil or his real or imputed political opinion.
The Tribunal did not accept that there was any cognisable particular social group consisting of “Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia.” Nevertheless, the Tribunal considered both elements of the proposed social group separately and cumulatively.
The Tribunal considered that, as a Tamil, the applicant would not be subjected to anything other than standard questioning on return. The Tribunal considered that the risk of the applicant suffering serious or significant harm in that context was remote and less than a real chance.
The Tribunal noted that illegal departure from Sri Lanka is an offence. The Tribunal noted that country information indicated that people charged with illegal departure are generally held in police custody for up to a few days and released on bail. The Tribunal considered that the relevant legislation was applied generally and regardless of ethnicity. The Tribunal considered that the legislation was not being applied selectively or in a discriminatory manner for a Convention reason and accordingly its application did not give rise to a risk of persecution under the Convention.
The Tribunal considered that the privations the applicant might suffer while in remand would not amount to significant harm. The Tribunal considered that the likely outcome of the applicant’s illegal departure from Sri Lanka was that he would be required to pay a fine, which he would be able to afford with the assistance of his family. In these circumstances, the Tribunal did not accept that the applicant faced a real risk of significant harm arising from his illegal departure.
The Tribunal concluded that the applicant did not face a real risk of serious or significant harm and was not a person to whom Australia owed protection obligations under the Refugees Convention.
Ground 1
The first ground of review in the application filed on 24 February 2014 and amended on 2 October 2014 is:
That the decision of the second Respondent, the Refugee Tribunal member was affected by legal error.
The applicant’s application did not provide any particulars of this ground. The applicant did not file any written submissions. The applicant told the court that the Tribunal had not looked at his personal situation and that he now had documents to prove his case.
The court is only able to send a matter back to the Tribunal if it made a jurisdictional error. The fact that the applicant might now have some additional documents that were not provided to the Tribunal and that might have changed the outcome is not a sufficient basis to remit the matter to the Tribunal.
It is apparent from the Tribunal’s reasons that it did look very closely at the applicant’s personal situation. The Tribunal considered the claims that the applicant made and addressed them carefully.
This ground is not made out.
Ground 2
The second ground of review in the application filed on 24 February 2014 and amended on 2 October 2014 is:
More details will be provided by the legal representative.
The applicant did not have a legal representative before this court and more details were not provided other than those mentioned under ground 1. This ground is not made out.
Ground 3: part a
The third ground of review in the application filed on 24 February 2014 and amended on 2 October 2014 has two parts. The first part is:
The decision of the Refugee Review Tribunal is affected by jurisdictional error.
Particulars
(a)The tribunal and the court failed to deal with an integer of the claim, as to whether or not there was a well founded fear of persecution based on his membership of an alleged particular social group, namely a young Tamil male from the north or east of Sri Lanka. In particular, whilst the tribunal has considered the heightened risk profile arising from being a Tamil from the east, both his age and gender and fact the applicant was a boat person did not receive consideration in the context of him being a member of a particular social group.
The first respondent correctly noted that the applicant did not claim to fear persecution because he was “a young Tamil male from the north or east of Sri Lanka”. The applicant’s claims concerned:
a)his abductions and the alleged telephone call in January 2012;
b)his Tamil race;
c)his real or imputed political opinion arising from his race and former residence in a predominantly Tamil region; and
d)his membership of particular social groups consisting of “Sri Lankan Tamils” and “Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia”.
The Tribunal considered all of those issues in considerable detail. In any event, the Tribunal also expressly rejected, at paragraph 93 of its reasons, the possibility that:
… the applicant will be imputed with an LTTE connection on return to Sri Lanka simply because he is a Tamil, from the East or because of his youth, gender or a combination of those characteristics.
The Tribunal is obliged to consider not only the claims that are expressly made, but also those that arise from the materials. However, it does not appear that any risk arising from being a young Tamil male from the east who was also a boat person emerged from the materials.
To the extent that being a boat person might be another way of raising the issue of illegal departure, the Tribunal dealt with the consequences of that for the applicant in considerable detail at paragraphs 105 to 119 of its reasons. In the context of illegal departure, at paragraph 115 of its reasons, the Tribunal noted that the applicant did not face serious harm simply as a Tamil or a Tamil from the east, and found that the applicant would not be seen by the authorities to have an association with the LTTE. The Tribunal considered that the applicant did not have a profile that that would bring him to the adverse attention of the authorities.
Furthermore, at paragraph 116 of its reasons, the Tribunal dealt with an issue raised by the applicant’s advisers, but not the applicant, concerning the risk to the applicant, posed by Sinhalese prisoners, if he were imprisoned, who might consider the applicant to be an LTTE supporter. The Tribunal concluded that the applicant did not have a profile that would bring him to the adverse attention of Sinhalese prisoners, or face significant harm if held in remand for several days.
This ground is not made out.
Ground 3: part b
The second part of the third ground of review in the application filed on 24 February 2014 and amended on 2 October 2014 is:
The decision of the Refugee Review Tribunal is affected by jurisdictional error.
Particulars
(b)The tribunal has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm.
The Tribunal’s consideration of the issue of complementary protection is interspersed throughout its consideration of the question of whether the applicant faced serious harm under the Convention.
In relation to the issues of the applicant’s Tamil ethnicity, being a Tamil from the East, and his real or imputed pro-LTTE political opinion, the Tribunal concluded at paragraph 98 that there was not a real risk that the applicant would suffer significant harm. That conclusion was based on the consideration and findings in paragraphs 73 to 97 of the Tribunal’s reasons for decision.
In relation to the issue of being a returnee and failed asylum seeker, the Tribunal concluded at paragraph 103 of its reasons for decision that the risk of the applicant being questioned in a way that would amount to significant harm was remote and less than real. That conclusion was based on the consideration and findings in paragraphs 99 to 103 of the Tribunal’s reasons.
In relation to the issue of the applicant’s illegal departure from Sri Lanka, the Tribunal did not accept at paragraph 116 of its reasons that there was a real (as opposed to remote or far-fetched) risk that the applicant would face significant harm if he were remanded for several days. At paragraph 119 of its reasons, the Tribunal concluded that the applicant did not face a real risk of suffering significant harm if he were charged with a breach of Sri Lanka’s immigration laws. Those conclusions were based on the consideration and findings in paragraphs 105 to 119 of the Tribunal’s reasons.
The Tribunal summarised its conclusions in relation to complementary protection as follows:
121.The Tribunal has considered whether the applicant comes within Australia’s protection under the complementary protection legislation. Having considered all of the evidence before it and the applicant’s claims, both separately and cumulatively, the Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if returned to Sri Lanka, including as a Tamil, a returnee, due to any real or imputed political opinion or while on remand for a short period in relation to illegal departure from Sri Lanka.
…
123.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).
On this basis, it is clear that the Tribunal did adequately consider the issue of complementary protection. This ground is not made out.
Ground 4: part a
The fourth ground of review in the application filed on 24 February 2014 and amended on 2 October 2014 has three parts. The first part is:
The decision of the Refugee Review Tribunal is affected by error in that there was a denial of procedural fairness.
Particulars
(a)The tribunal has failed to provide to the applicant for his consideration and comment those aspects of country information which related to pro Government (non state) paramilitary groups. The applicant says he would be at a heightened risk, given he would be a returned asylum seeker and it could be imputed that he was returning with cash.
This ground is difficult to follow. The applicant did not claim that he was at heightened risk because it might be imputed that he was returning to Sri Lanka from Australia as a failed asylum seeker with cash. It is not an issue that arose from the materials. Consequently, and properly, the Tribunal did not deal with the issue and therefore did not rely on any country information about it.
The Tribunal did not rely on adverse country information in relation to paramilitary groups in general or the TMVP in particular. At paragraph 82 of its reasons for decision, the Tribunal rejected the applicant’s claim to have been abducted by the TMVP on the basis of implausibility, without relying on any country information.
At paragraph 83 of its reasons for decision, the Tribunal accepted certain matters that were in the applicant’s favour. The Tribunal had no obligation to put country information to the applicant that assisted his case.
At paragraph 84 of its reasons for decision, the Tribunal rejected a claim about the TMVP on the grounds of implausibility and an inconsistency in the applicant’s accounts, without relying on any country information.
At paragraph 88 of its reasons for decision, the Tribunal accepted that country information indicated that the TMVP has been accused of extorting money from businesses and the wealthy. That was country information that was in support of the applicant, as far as it went, so the Tribunal was not obliged to put it to the applicant. However, the Tribunal did not accept as plausible, and said the evidence before it did not suggest, that the applicant would be targeted for ransom simply because he had returned from Iraq. In reaching this conclusion, the Tribunal relied on an absence of country information, rather than any country information that was positively adverse to the applicant. In any event, the issue of extortion that the applicant raised concerned his return from Iraq as a worker there, not his return from Australia as an asylum seeker.
Consequently, there was no country information relating to paramilitary groups that the Tribunal was obliged to put to the applicant. This ground is not made out.
Ground 4: part b
The second part of the fourth ground of review in the application filed on 24 February 2014 and amended on 2 October 2014 is:
The decision of the Refugee Review Tribunal is affected by error in that there was a denial of procedural fairness.
Particulars
(b)The tribunal did not put to the applicant for comment all adverse “country information” regarding the situation for failed asylum seeker/returnee Tamils in Sri Lanka, the non requirement that Tamils register in Colombo, that simply being a Tamil from the north or east was no longer enough to put someone at risk & the poor conditions and lack of resources in Sri Lankan prisons. That in fairness to the applicant he should have been provided in written form, so that the applicant and his representative would have had a reasonable period of time to digest such information and then make submissions in response. The applicant’s representative of his own accord addressed the issue of discretion of sentencing for persons charged with illegal departure from Sri Lanka, however it should have been initiated by the tribunal, given it was an important aspect of its final decision.
It was not necessary for the Tribunal to put to the applicant the various matters referred to by him in this ground under s.424A of the Migration Act 1958 because country information falls within the exception under s.424A(3)(a) of the Act.
To the extent that it may have been necessary to put the various matters under s.425 of the Act, they were put. The Tribunal, in recounting the events at the hearing, said the following:
56.The Tribunal put to [the applicant] country information that there was no longer a requirement for Tamils to register in Colombo, which would also make it difficult for people to find him.
…
58.The Tribunal put country information to the applicant indicating that simply being Tamil, or a young Tamil man from the North or East is not enough to give rise to a risk of harm or to give rise to a suspected LTTE association. The applicant thinks that he is of suspicion because of the abduction in 2000 and the phone calls. He was not in his home country. He believes that if he had stayed in Sri Lanka he would have faced more issues had he not gone overseas during that period. There are two factors why they are looking for him – because he is a Tamil and because of the suspicions.
…
60.The Tribunal asked the applicant about his fears of failed asylum seeker and put to him its reading of the country information indicated that simply being a failed asylum seeker was not enough to give rise to a risk of harm or an imputed political opinion, although it noted that it may be a factor that might put someone at risk in combination with other factors. The Tribunal noted that the applicant himself had stated that the Sri Lankan authorities wanted people to leave on boats. The applicant stated that these things happen.
61.The Tribunal raised the issue of illegal departure laws and explained to him that the evidence before it indicated that persons returning to Sri Lanka who left by boat are being charged with offences under Sri Lanka’s immigration law. The Tribunal put to the applicant information that enforcement of Sri Lanka’s immigration laws would be considered a law of general application because it appeared that it was applied in a non-discriminatory manner.
…
63.The Tribunal put to [the applicant] that it appeared he would only be in jail for a maximum of a few days before being released on personal bail. The Tribunal put to him that the punishment was up to five years imprisonment and up to 200,000 rupees in fines but that there was judicial discretion and that the likely punishment would be a fine.
64.The Tribunal put to the applicant country information regarding poor conditions and lack of resources in Sri Lankan prisons but advised that on the information before it, it appeared that a real chance of serious harm or a real risk of significant harm would only arise if he was imprisoned for a lengthy period of time and not simply a matter of days or weeks.
It was not necessary under s.425 of the Act to put those matters to the applicant in writing, especially as he had a solicitor and migration agent present, who could have asked for time to respond in writing if he had wished.
In addition, the delegate noted the following country information, which the applicant is taken to be aware of:
a)at CB134, that originating from an area previously controlled by the LTTE does not of itself result in a need for protection; and
b)at CB135, that Tamil returnees are not treated differently to anyone else.
This ground is not made out.
Ground 4: part c
The third part of the fourth ground of review in the application filed on 24 February 2014 and amended on 2 October 2014 is:
The decision of the Refugee Review Tribunal is affected by error in that there was a denial of procedural fairness.
Particulars
(c)The tribunal did not put to the applicant for comment adverse “country information” regarding the improved situation for Tamils in Sri Lanka.
I am not satisfied that the Tribunal did not put the relevant country information to the applicant. The finding that concerns the improved situation for Tamils in Sri Lanka seems to be in paragraph 93 of the Tribunal’s reasons which is as follows:
93.The country information available to the Tribunal does not indicate that being a Tamil, a Tamil from the East or a young Tamil male gives rise to a risk profile in Sri Lanka now.[1]3 The Tribunal finds that the country information also does not support the claim that being a Tamil who formerly resided in a predominantly Tamil region, such as the North or East, creates a risk profile or an imputed pro-LTTE opinion. The UK Home Office noted in 2012 that that “the principal focus of the authorities continues to be, not Tamils from the north (or east) as such, but persons considered to be LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms.”[2]4 The Tribunal does not accept the applicant will be imputed with an LTTE connection on return to Sri Lanka simply because he is a Tamil, from the East or because of his youth, gender or a combination of those characteristics.
[1] 3UNHCR, Eligibility Guidelines for Assessing the International Protection needs of Asylum Seekers from Sri Lanka, 21 December 2012 do not list Tamils as a group at risk in Sri Lanka.
[2] 4UK Home Office, 2012, Country Policy Bulletin – Sri Lanka, October.
The Tribunal said at paragraph 58 of its reasons for decision that:
The Tribunal put country information to the applicant indicating that simply being Tamil, or a young Tamil man from the North or East is not enough to give rise to a risk of harm or to give rise to a suspected LTTE association. …
That seems to cover the idea of the improved situation for Tamils in Sri Lanka. There is no reason to doubt that the Tribunal put the information to the applicant that it said it had put.
In any event, in a submission dated 1 May 2013, the applicant’s adviser himself referred the Tribunal to one of the relevant items of country information, being the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012 at CB169 and CB173. Clearly, the Tribunal was under no obligation to put information to the applicant that the applicant had put to the Tribunal.
This ground is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 27 January 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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