MZAAY v Minister for Immigration

[2015] FCCA 1791

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAAY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1791

Catchwords:
MIGRATION – Refugee Review Tribunal – whether claim raised by the applicant – whether claim emerged clearly from materials – whether claim dealt with by findings of greater generality.

Legislation:
Migration Act 1958
Immigrants and Emigrants Act of 2006 (Sri Lanka)

Cases cited:
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)(2004) 144 FCR 1; (2004) 219 ALR 27; [2004] FCAFC 263
SZRKY v Minister for Immigration and Citizenship & Anor (2013) 141 ALD 328; [2013] FCA 352
SZRPA v Minister for Immigration and Citizenship & Anor [2012] FCA 962
SZSHK v Minister for Immigration and Border Protection & Anor (2013) 138 ALD 26; [2013] FCAFC 125

Applicant: MZAAY

First respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 337 of 2014

Judgment of: Judge Riley

Hearing date: 14 April 2015

Date of last submission: 14 April 2015

Delivered at: Melbourne

Delivered on: 30 June 2015

REPRESENTATION

Counsel for the applicant: Caroline Symons

Solicitors for the applicant: Victoria Legal Aid

Counsel for the first respondent: Warren Mosley

Solicitors for the first respondent: Clayton Utz

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz

ORDERS

1. The application filed on 26 February 2014 and amended on 5 March 2015 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 337 of 2014

MZAAY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal (“the tribunal”). In that decision, the tribunal affirmed a decision of the delegate not to grant the applicant a protection visa.  This matter was heard with MZAAX (by his litigation
   guardian) v Minister for Immigration & Anor MLG336 of 2014.

The applicant’s claims

1. The applicant arrived on Christmas Island on 5 June 2012 as an unauthorised maritime arrival.  He said in a statutory declaration made on 22 August 2012 that:

   a)he was a Tamil male Hindu from the northwest province of Sri Lanka;

   b)he was 15 years old;

   c)his father was a fisherman;

   d)in about 2007, when the applicant was about 10 years old, he went with his uncle to Mullativu to buy fishing nets;

   e)some people in a Jeep shot his uncle and tried to shoot the applicant as well;

   f)the applicant ran into the forest and lost consciousness;

   g)he thought the shooters were the CID or police;

   h)previously, people with covered faces who spoke Sinhalese had come looking for his uncle;

   i)after the incident, people came looking for him at his parents’ workplace in Trincomalee;

   j)the applicant was in hiding and later went back to Udappu;

   k)in 2011, people looked for the applicant in Udappu but he was careful not to get caught;

   l)the applicant was beaten by police officers a number of times; and

   m)the applicant feared that if he returned to Sri Lanka he would be killed by the Sri Lankan Army, or the police or CID, because, as a Tamil, he will be suspected of being a member of the LTTE.

The Tribunal’s reasons

1. The tribunal noted that there were numerous inconsistencies in the evidence given by the applicant. Even allowing for the applicant’s youth and other vulnerabilities, the tribunal considered that most of the applicant’s account of past events was not credible. The tribunal accepted that the applicant had witnessed his uncle being shot, but, for detailed reasons which it gave, the tribunal did not accept that the applicant’s uncle was killed by the CID or that the uncle was involved with the LTTE.  Nor did the tribunal accept that the applicant himself was beaten by the police or army while in Sri Lanka.

2. The tribunal noted that the applicant was 17 years old at the time of its decision.  The tribunal considered the vulnerabilities inherent in the applicant’s youth.  However, the tribunal formed the view that the applicant could return to the care of his family in Uddapu, who he speaks to every day by telephone. The tribunal considered that the applicant would not face serious harm in Sri Lanka for reasons connected with his age.

3. The tribunal did not accept that the applicant would be imputed with an adverse political opinion because he was a failed asylum seeker or for any other reason.  The tribunal considered that any detriment that the applicant might suffer as result of departing Sri Lanka illegally would be the result of a law of general application that would be applied indiscriminately.  Consequently, the tribunal did not accept that any such detriment would be for a Convention reason.

4. In relation to complementary protection, the tribunal considered that any harm that the applicant might experience in the context of being held on remand briefly as a result of his illegal departure from Sri Lanka would not amount to significant harm as defined in the Migration Act 1958.  In so concluding, the tribunal accepted that the prisons in Sri Lanka do not meet international standards as a result of overcrowding, poor sanitary facilities, limited access to food and an absence of basic assistance mechanisms.

Ground of application

1. The ground of review in the application filed on 26 February 2014 and amended on 5 March 2015 is:

   The Tribunal’s decision dated 29 January 2014 (the “Tribunal’s decision”) is affected by jurisdictional error because the Tribunal failed to take into account a relevant consideration or did not otherwise perform its statutory task.

   Particulars

   It was a claim of the applicant that, upon any return to Sri Lanka and due to the applicant’s vulnerability as an unaccompanied youth, he faced persecution and/or significant harm in the form of sexual or other physical violence at the hands of other detainees whilst being detained on remand with other adult prisoners, including sex offenders.

   In making its decision, the Tribunal failed to consider this claim.

2. Essentially, the applicant argued that the tribunal failed to consider that the applicant, as a minor, might be imprisoned with adult sex and other offenders and might be mistreated by them.  The applicant argued that this claim was raised expressly or arose from the materials.  The first respondent argued that the claim was not made expressly and did not arise from the materials.  Alternatively, the first respondent submitted that the claim, if any, was dealt with in findings of greater generality. 

3. The applicant submitted that the claim was raised in the following places:

   a)at CB140, in a submission dated 14 September 2012 from RILC to the tribunal department, under the heading, “Treatment in detention and prison conditions”, where the adviser said:

   Further, as a juvenile the applicant is at even greater risk.  According to the UK Home Office COI report:

   11.10 The UN Concluding observations of the Committee on Economic, Social and Cultural Rights … dated 9 December 2010, noted

   
   

   that: - The Committee is concerned about the acute overcrowding and the inhuman detention conditions which prevail in many of the State party’s prisons.  The Committee is also concerned that children are not regularly separated from adults. [emphasis added by RILC]

   b)at CB320 to CB321, in a submission dated 7 May 2013 to the tribunal, where RILC said:

   It is submitted that [the applicant] faces a real chance/risk of being detained for a long period of time, not simply the amount of time it will take a Magistrates’ Court to reconvene, and that he will be subjected to prison conditions which do not meet international standards, may be detained with adults including sex offenders and as a Tamil male may be physically and sexually assaulted or tortured by Sri Lankan authorities. (emphasis added) …  We submit that given the applicant’s young age and the extremely poor prison conditions in Sri Lanka, any period of detention could amount to serious/significant harm especially given information that children are not always separated from adults including adults who have been convicted of offences.

4. The tribunal dealt with the issue of the applicant’s youth in a number of places in its reasons for decision.

5. The tribunal said, at paragraphs 80 and 81, under the heading, “The applicant’s young age”:

   80.The applicant departed Sri Lanka in 2012 aged fifteen and is seventeen years old at the time of the Tribunal’s decision.  While the UNHCR Guidelines identify children in certain circumstances as being potentially in need of international refugee protection, the Tribunal is not satisfied that the circumstances referred to in those Guidelines are relevant to the applicant’s circumstances, noting that they pertain to former child soldiers, children at risk of sexual violence or exploitation or children at risk of underage marriage or child labour.  There is nothing in the evidence before the Tribunal to suggest that the applicant fits any of these profiles.

   81.While the Tribunal accepts the vulnerabilities inherent in the applicant’s young age, it notes the applicant’s evidence that he remained in the care of his family in Uddapu and Trimcomalee up until his departure from Sri Lanka in 2012 and that he currently speaks to his parents every day who remain in Uddapu. In these circumstances the Tribunal does not accept there to be a real chance that the applicant would face serious harm on the basis of his young age if he returns to Sri Lanka, now or in the reasonably foreseeable future.

6. Under a heading in relation to political opinion, the tribunal said, at paragraphs 83 and 86:

   83.The Tribunal has considered the submission that the applicant’s young age, male gender, Tamil ethnicity and place of origin being a Tamil dominated area would put the applicant at risk of harm.  While the Tribunal accepts that the applicant is a young Tamil male from Udappu who has also spent time with his parents in Trimcomalee, it does not accept there to be a real chance that he would be imputed with a pro-LTTE or anti political opinion for these reasons alone.  In making this assessment the Tribunal has had regard to the UNHCR 2012 Guidelines which indicate that there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country.  The Tribunal considers those guidelines suggest that being Tamil alone is not automatically indicative or suggestive of risk in Sri Lanka, and that regard to personal circumstances is important in assessing the chances of harm to the applicant due to his race.  For the same reasons, the Tribunal does not accept there to be a real chance that the applicant will be imputed with a political opinion opposed to the current Sri Lankan government because of his status as a young Tamil boy (child) from North West or Udappu or a young Tamil who is perceived to live in Trimcomalee or any other formulation based on his young age, his male gender, his Tamil ethnicity and place of origin.

   …

   86.… Nor does the Tribunal accept there to be a real chance the applicant will face serious harm on the basis of his membership of the particular social group ‘unaccompanied minor Tamil asylum seekers/ returnees who have fled Sri Lanka unlawfully’, having regard to its findings about the applicant’s age, failed asylum seekers and returnees set out elsewhere in this decision. 

7. More relevantly, the tribunal found at paragraphs 90 and following that:

   a)at paragraph 90, the applicant left Sri Lanka contrary to the Immigrants and Emigrants Act of 2006 (Sri Lanka) (“IEA”);

   b)at paragraph 91, it was likely that he would be questioned on his return, but such questioning would not amount to persecution, even taking into account the applicant’s youth;

   c)at paragraph 92, there was a real chance that the applicant would be prosecuted under the IEA;

   d)at paragraph 93, any such prosecution would be pursuant to a law of general application applied indiscriminately and would therefore not constitute Convention persecution;

   e)at paragraph 94, the applicant would not face disproportionate treatment from the authorities as a young Tamil male from the north;

   f)at paragraphs 96 to 99 and 101, there was a real chance that the applicant would be held on remand for a few days but a remote chance that he would be held for longer than that;

   g)at paragraph 100, the chance of the applicant being sentenced to a term of imprisonment on conviction was remote; and

   h)at paragraph 101, the applicant’s family would be able to pay any fine imposed on the applicant.

8. Most significantly, the tribunal said at paragraph 102:

   The Tribunal has considered the available country information in relation to the circumstances of individuals who are held in prison in Sri Lanka.  The Tribunal notes the reports of torture and assault of Tamil prisoners in Sri Lanka, however it considers that independent sources set out in Attachment A indicate that it is Tamil prisoners who otherwise had a profile of being supporters of the LTTE or otherwise opposed to the current Sri Lankan government who are targeted in this way.  The Tribunal does not accept that the applicant faces a real chance of being seriously harmed because he is Tamil, or of being treated more harshly than non-Tamil prisoners, while he is imprisoned on remand for a few days after his return to Sri Lanka. In making this assessment the Tribunal has had regard to his young age and the evidence as to his mental state.

9. Under the heading, “Complementary protection”, the tribunal found at paragraph 111, the questioning the applicant would face under the IEA would not amount to significant harm, even having regard to his youth and associated vulnerability.

10. More relevantly, the tribunal said at paragraph 112:

    In relation to the treatment the applicant may face while held in prison in Sri Lanka, the available country information shows prison conditions in Sri Lanka do not meet international standards as a result of overcrowding, poor sanitary facilities, limited access to food and an absence of basic assistance mechanisms. As required by the Ministerial direction referred to above, the Tribunal has taken into account the relevant guidance in the PAMS in relation to the circumstances in which harsh detention conditions may amount to significant harm. The Tribunal has also considered the impact of such detention on the applicant given his young age and state of health and the decision of this Tribunal (differently constituted) that is said to be relevant to the decision of this Tribunal.   However the Tribunal in this case is required to consider the particular circumstances of the applicant before it.  On the evidence before it, the Tribunal is not satisfied that being in overcrowded conditions with limited access to basic facilities for a few days while on remand would, in the applicant's particular circumstances, amount cumulatively to a level of severity of treatment that amounts to a serious or systematic deprivation of his human dignity, cause him pain and suffering that can be characterised as “cruel or inhuman treatment or punishment,” or cause him extreme humiliation that constitutes “degrading treatment or punishment” or cause him “severe pain or suffering” that could be characterised as torture, or any other form of significant harm.

11. It is well established that the tribunal:

    …is not required to consider a case that is not expressly made or does not arise clearly on the materials before it.[1]

    [1] NABE v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (No.2) (2004) 144 FCR 1; (2004) 219 ALR 27; [2004] FCAFC 263 at [61]

12. It is clear that the applicant did not expressly raise the claim that he might suffer sexual or physical assault or other mistreatment at the hands of other prisoners.  There was an express claim that the applicant might be physically and sexually assaulted or tortured while in prison by Sri Lankan authorities.  However, it was not suggested that the tribunal did not deal with that claim.

13. I am not persuaded that the claim that the applicant might suffer sexual or physical assault or other mistreatment at the hands of other prisoners clearly arose on the materials before the tribunal.  The court was not taken to any country information that was before the tribunal that suggested that 17 year old males held on remand for a few days in Sri Lanka were at risk of physical or sexual assault by other prisoners.  In my view, that risk does not clearly emerge from the material that was before the tribunal.  It is a matter of common knowledge that prisoners sometimes physically and sexually assault other prisoners.  However, there was nothing in the material before the tribunal that suggested that such events occur with such frequency in Sri Lankan prisons that the applicant would face a real risk of that happening to him in the few days that the tribunal considered that he would be held in remand.

14. In any event, there is authority that, where an applicant is professionally represented, as here, the tribunal is only obliged to consider those claims that are expressly articulated: SZRKY v Minister for Immigration and Citizenship & Anor (2013) 141 ALD 328; [2013] FCA 352 at [14], SZRPA v Minister for Immigration and Citizenship & Anor [2012] FCA 962 at [10], [26] and [32], and SZSHK v Minister for Immigration and Border Protection & Anor (2013) 138 ALD 26; [2013] FCAFC 125 at [37]. In view of that authority, the fact that the applicant did not expressly raise the claim now sought to be agitated is sufficient to dispose of the matter.

15. For completeness, I would also add that I am not persuaded that, if the claim had been raised, the tribunal’s general findings would have been adequate.  The claim now sought to be raised is of a very specific nature and it would have required very specific assessment.  The tribunal’s reference to overcrowding and so on would not have been sufficient to deal with a squarely raised claim of physical or sexual assault by other prisoners.

16. I would also add that the applicant is now 18 years old.  Even if there had been a jurisdictional error as alleged, there would be a question whether the matter should be remitted to the tribunal in circumstances where the applicant is no longer a minor.  It is true that the applicant is still a very young man. However, the concerns about him being held in an adult prison would seem to have diminished.  He no longer needs a litigation guardian.

Conclusion

1. For the reasons given above, the application must be dismissed with costs.  I will hear the parties on the amount of costs, given that this matter was heard in conjunction with MZAAX.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  30 June 2015