MZAAM v Minister for Immigration and Border Protection

[2015] FCA 437

FEDERAL COURT OF AUSTRALIA

MZAAM v Minister for Immigration and Border Protection [2015] FCA 437

Citation:	MZAAM v Minister for Immigration and Border Protection [2015] FCA 437
Appeal from:	MZAAM v Minister for Immigration and Border Protection [2015] FCCA 79
Parties:	MZAAM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 62 of 2015
Judge:	TRACEY J
Date of judgment:	11 May 2015
Catchwords:	MIGRATION – appeal from the Federal Circuit Court of Australia – judicial review of decision to refuse a Protection (Class XA) visa – no appellable error made out
Legislation:	Migration Act 1958 (Cth) ss 36(2)(aa), 424A(3)(a)
Date of hearing:	11 May 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	19
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Mr L Brown
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent	The Second Respondent entered a submitting appearance save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 62 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZAAM
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	11 MAY 2015
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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 62 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZAAM
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	11 MAY 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant is a citizen of Sri Lanka.  He is a Tamil.  He arrived at Christmas Island without a visa on 29 May 2012.  He applied for a Protection (Class XA) visa.  He claimed to fear persecution on return to Sri Lanka because of his Tamil race, his real or imputed political opinion as a suspected supporter of the Liberation Tigers of Tamil Eelam (“LTTE”) and his membership of a particular social group, namely, Sri Lankan ‘Tamils’ and ‘Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia’.

2. The application was refused by a delegate of the Minister.

3. The appellant appealed to the Refugee Review Tribunal (“the Tribunal”).

4. The Tribunal accepted much of what the appellant recounted about his experiences in Sir Lanka.  It did not, however, consider that he faced a real chance of serious harm should he return to Sri Lanka for any of the reasons which he had advanced.

5. The Tribunal affirmed the delegate’s decision.

6. The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court.  He contended that the Tribunal had fallen into jurisdictional error by:

   ·Failing to deal with his claim that he had a well-founded fear of persecution based on his membership of a particular social group.

   ·Failing properly to consider whether there existed substantial grounds for believing that a foreseeable consequence of the appellant being returned to Sri Lanka was that he would there suffer significant harm.

   ·The Tribunal had denied him procedural fairness.

7. The Federal Circuit Court considered each of these grounds and rejected them.

8. As to the first ground it found that the appellant had not earlier claimed to fear persecution because he was “a young Tamil male from the north or east of Sri Lanka.”  In any event the Tribunal had considered and rejected the possibility that the appellant would be taken to have an LTTE connection “because he is a Tamil, from the East or because of his youth, gender or a combination of those characteristics.”

9. As to the second ground the Court referred to passages in the Tribunal’s reasons in which it had specifically dealt with the question of whether he faced a real risk of suffering significant harm should he return to Sri Lanka. This issue arose under s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”) and had been addressed by the Tribunal.

10. The third ground relating to an alleged denial of procedural fairness was advanced on a number of bases.

11. It was first alleged that the Tribunal had failed to provide the appellant an opportunity to comment on country information “related to pro-Government (non State) paramilitary groups.”  This failure was in some way associated with what the appellant said would be a heightened risk should he return as a failed asylum seeker because “it could be imputed that he was returning with cash.”  This claim had not been made before the Tribunal and was, as a result, not considered by it.  For the same reason it did not have regard to country information touching on the issue.

12. The second basis on which the appellant claimed that there had been a denial of procedural fairness was that the Tribunal had not put to the applicant for comment, “all adverse ‘country information’ regarding the situation for failed asylum seeker/returnee Tamils in Sri Lanka …” There was no requirement for the Tribunal to do so: see s 424A(3)(a) of the Act. There was also no obligation on the Tribunal to put adverse country information to him in writing. In any event, the Court found that much of the relevant country material had been raised with the appellant in the course of the oral hearing before the Tribunal. This included material which suggested that the situation for Tamils in Sri Lanka had improved in recent times.

13. The Federal Circuit Court dismissed the application.

14. The appellant has now appealed to this Court against the Federal Circuit Court’s decision.  His notice of appeal relies on substantially the same grounds as he relied on before the Federal Circuit Court and he contends that that Court erred in not accepting them.

15. The appellant appeared at the hearing this afternoon and had the assistance of an interpreter. 

16. When given the opportunity to explain his complaints of jurisdictional error on the part of the Tribunal the appellant said that he had new evidence which he wanted the Tribunal to consider and which, he said, would support his claims to be a refugee.  He did not identify the particular evidence nor explain whether or not it was available to him at the time of the Tribunal hearing.  He did not refer to any error which might be considered to be jurisdictional in nature.

17. I have carefully considered the reasons for the decision of the Tribunal and, like the Federal Circuit Court judge, I can detect in them no jurisdictional error.  The Tribunal cannot be found to have erred by failing to have regard to material which was not placed before it.

18. The appellant failed to establish any appellable error on the part of the Federal Circuit Court.

19. The appeal must be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:       11 May 2015