MZABD v Minister for Immigration

[2015] FCCA 4

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZABD & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 4

Catchwords:
MIGRATION – Judicial review of a decision of the Refugee Review Tribunal – applicant’s actual or imputed political opinion – applicant’s ethnicity – denial of natural justice – consideration of section 424 of the Act – application dismissed. 

Legislation:

Migration Act 1958 (Cth)

Appellant S395202 v Minister for Immigration & Multicultural Affairs [2003] HCA 71
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26

First Applicant: MZABD

Second Applicant: MZABE

Third Applicant: MZABF

Fourth Applicant: MZABG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 379 of 2014

Judgment of: Judge McGuire

Hearing date: 10 November 2014

Date of Last Submission: 10 November 2014

Delivered at: Melbourne

Delivered on: 5 February 2015

REPRESENTATION

Counsel for the Applicants: In Person

Counsel for the Respondent: Mr Brown

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. That the application for judicial review filed 7 November 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 379 of 2014

MZABD

First Applicant

MZABE

Second Applicant

MZABF

Third Applicant

MZABG

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. The first applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made 5 February 2014.  Under the provisions of the Migration Act 1958 (the Act) whereby the Tribunal affirmed a decision of the delegate (the Delegate) to refuse the application for a protection (Class XA) visa (the Visa).

2. The second, third and fourth applicants are the first applicant’s wife and two children. 

3. The application was filed 4 March 2014.  An amended application was filed 7 November 2014. 

4. The first applicant is a citizen of Sri Lanka.  He came to Australia on 24 March 2008 as a dependent of his wife who, at that time, herself held a Class TU, Subclass 573 (Higher Education Sector) student visa.

5. The first applicant made an application for a visa in his own right on 5 March 2013 and some two weeks prior to the expiry of his wife’s student visa.

6. The application has at all times been prosecuted by the first applicant with his wife and children making no separate or specific claims for protection and their applications are as members of the first applicant’s family unit pursuant to s.36(2)(b) of the Act.

7. The Delegate refused the applicant’s application for a visa on 14 August 2013.

8. On 27 August 2013, the applicant made application to the Tribunal seeking a merits review.

9. The applicant was for a time represented and his lawyers filed submissions and country information on 19 November 2013.

10. The applicant and his lawyer attended the hearing before the Tribunal on 20 November 2013.

11. The Tribunal at the hearing sought further information from the applicant in respect of his living arrangements in 2006/07 and a medical report from his psychiatrist.  The matter was adjourned and that material was forthcoming.

12. The Tribunal’s decision is dated 5 February 2014 and affirming the Delegate’s decision.

13. The applicant appears before me today unrepresented but with the assistance of an interpreter.  I established that the applicant and the interpreter share a common language and understanding.

14. The amended application of 7 November 2014 sets out five separate grounds of complaint.  They are:

    1.The interests of the Applicants is affected by the decision given by the Second Respondent on 5 February 2014.

    Particulars

    A.The Respondents, in particular, the Second Respondent failed to properly consider and apply the definition of Article 1A(2) of the Convention relating to the status of Refugees made at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees made at New York on 31 January 1967.

    (i)     The Respondents failed to consider that the Applicant’s claims in (sic) coincide with the “membership of a particular social group”.

    2.That the Second Respondent ignored, failed to consider Section 424A(1) of the Migration Act 1958.

    Particulars

    A.     The Second Respondent made an adverse decision against the claims made by the Applicant affirming the decision made by DIBP without giving any notice under Section 424A(1) as required by the legislation.

    3.The Second Respondent acted without or in excess of jurisdiction and/or identified wrong issues, asked wrong questions, relied on irrelevant material or ignored relevant material.

    Particulars

    A.The Second Respondent failed to consider the Applicant’s express claim that he was at risk of persecution because of his membership to a particular group, ethnicity and his political opinion.

    B.The Second Respondent rejected the Applicant’s claims in relation to his political affiliation with UNP on the basis that the Applicant’s profile was not sufficiently high.

    4.The Applicants were denied natural justice.

    Particulars

    A.The Respondents, in particular the Second Respondent questioned the applicant in a fashion that implying in regularly (sic) that he was not a credible witness and therefore preventing the applicant putting forward his case.

    B.The Second Respondent has given undue weight in finding the “injuries” suffered by the Applicant on what occasion than (sic) the Applicant did sustain injuries.

    5.The Second Respondent failed to review and consider the application for protection as per the Migration Act.

    Particulars

    A.The Applicants refer to and repeat the particulars set out in paragraph 1-4.

15. The applicant’s material shows that he claims a well-founded fear of persecution if returned to Sri Lanka because of:

    a)His membership of a particular social group (PSG) being his own family;

    b)Actual or imputed political opinion due to his affiliation with a political party, namely United National Party (UNP);  and

    c)His ethnicity, being Sri Lankan Chinese of Sinhalese ethnicity.

16. The applicant is 36 years old.  He was born in Colombo, Sri Lanka.  His application refers to himself as “Buddhist-Catholic”[1].

    [1] CB2

17. Whilst the applicant first arrived in Australia on 22 April 2008, in the circumstances set out above, he had returned to Sri Lanka between 27 July 2011 – 10 August 2011 and 1 August 2012 – 16 August 2012.

18. The applicant particularised his claims before the Tribunal as follows[2] :

    [2] CB372 – Tribunal’s reasons at paragraph 11

    a)That his father was a senior police officer in charge of security for President Premadasa, but was killed with the President in a suicide bomb attack on 1 May 1993;

    b)That the applicant himself was threatened after his father had been killed;

    c)That he was kidnapped in Rathmalana in December 2003 and then tortured before running away to an air force camp;

    d)That the applicant’s then wife, mother and son were killed in September 2004 when they were hit by a bus coming in the opposite direction;

    e)That he had received many threatening calls from the Tamil Tigers (LTTE) and other militant groups;

    f)that he played for a basketball team that was attacked by suicide bombers, resulting in the death of 15 players;

    g)that he returned to Sri Lanka in July 2011 and in August 2012 for a court hearing whereupon he was chased by Tamils on 14 August 2012 whilst travelling between Rathmalana and Piliyandala; 

    h)the applicant’s mother-in-law has been subjected to threats of being killed by LTTE should she not disclose the whereabouts of the applicant and that police have refused to take complaints from the mother-in-law;  and

    i)that the applicant’s family were strong members of UNP.

19. The Tribunal informed the applicant that it accepted that his father had been killed by a suicide bomber but the applicant agreed that it was the President, not his father, who was the target of the attack.  The applicant confirmed, however, that his father had been threatened by LTTE because of his relationship with the President and that the applicant himself had the need for a security guard when he was 15 years old.

20. Nevertheless the Tribunal made a number of findings of fact and credit contrary to the submissions of the applicant and in respect of the following bases of his application: 

(1) Membership of a particular social group – his family

1. The Tribunal found that there was no real chance that the applicant would be seriously harmed by LTTE on account of his father’s former occupation or any past threats made by the LTTE and any fear of persecution on this basis was not well-founded. (See CB, 374, at[19]).  In making this finding, the Tribunal noted that 21 years had passed since his father’s death.  It noted the nature and objective of the threat in respect of his father and the president.

2. Whilst accepting that the applicant was a member of a basketball team and that members were killed by a suicide bomber, the Tribunal found that the attack was part of random violence at that time and not an attack directed at the applicant.

3. The Tribunal considered the applicant’s claim of being kidnapped in 2003 by LTTE and found it implausible, given inconsistencies in the applicant’s own evidence.

4. The Tribunal accepted the applicant’s claim of a tragic motor vehicle accident in 2008.  It did not accept, however, that LTTE or other Tamil militant groups were responsible for or connected with the accident.  The Tribunal referred to the applicant’s vague evidence in respect of gunshots being fired upon him during the accident. However there was no corroborative evidence that the applicant was speeding due to fear of escaping any assailant or that shots were fired. The evidence accepted by the Tribunal was that the accident was caused by a collision with a bus in which the driver was speeding (See CB, 377 at [38]).

5. The Tribunal did not accept the applicant’s claims that he was forced to relocate because of threatening telephone calls from LTTE in 2004 or that he was followed by LTTE on his visit to Sri Lanka in 2012.  The Tribunal referred to evidence inconsistent with the applicant’s claim.  (See CB378 at [40]-[41]).

6. The Tribunal rejected the applicant’s claim of receiving threatening phone calls in Australia and found his evidence to be vague and contradictory.  (See CB379 at [47]).

7. Similarly, the Tribunal did not accept that the applicant’s mother-in-law had received a threatening phone call.  The Tribunal noted that the applicant had not particularised the alleged telephone call and the Tribunal noted the apparent illogicality of the alleged threat.

(2) The Applicant’s Actual or Imputed Political Opinion and Affiliation with UNP

1. The Tribunal noted that the applicant did not put forward this claim in his application for a visa and it was not included in his written submissions filed before the Tribunal.  It was noted, however, that the applicant provided a letter with his visa application stating that he had been an active supporter of UNP together with a letter from UNP stating that members of LTTE continued to fight in Sri Lanka (see CB 160).

2. The Tribunal did not accept that the applicant was a member or a strong supporter of UNP.  The Tribunal noted the failure of the applicant to mention his UNP involvement in his visa application or that he had helped UNP by designing and printing campaign posters.  The UNP correspondence tendered in evidence did not indicate the applicant’s membership.  Whilst accepting that the applicant may have known UNP politicians socially and provided some assistance, the Tribunal did not accept that such level of involvement would lead to a real chance of serious harm or a real risk of significant harm.  (See CB379, paragraph [52]).

(3) The Applicant’s Ethnicity

1. The Tribunal considered the applicant’s claimed fear of harm from LTTE in the context of him being a Sri Lankan Chinese of Sinhalese ethnicity.  The Tribunal considered the applicant’s own evidence and country information.  At [72] the Tribunal stated:

   The Tribunal has been unable to find any country information that indicates there has been any resurgence of the LTTE in Sri Lanka or that they have any capacity to carry out attacks and none was provided by the applicant.  There is no evidence that there are other Tamil militant groups operating in Sri Lanka.

2. And at [79] and [80]:

   The Tribunal finds that there is no real chance that the applicant would be persecuted in the reasonably foreseeable future by the LTTE and other Tamil militant groups and any fear of persecution on this basis is not well-founded.  For the same reasons, the Tribunal is satisfied that there are no substantial grounds for believing that a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm at the hands of the LTT or other Tamil militant groups.

   The Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of his membership of a particular social group, of his family or for reasons of his race and ethnicity as submitted by his agent.

3. And, further, at [81]:

   The Tribunal has considered the applicant’s claims cumulatively.  That is, whether a male member of the Sri Lanka Chinese ethnic group, or who is of Sinhalese ethnicity, who was Buddhist-Catholic, whose father was an assistant superintendent of police who was killed in an LTTE bomb attack that killed President Premadasa, whose family members were killed in a car accident, who has provided professional assistance to UNP and lent their politicians vehicles, whose basketball team members were killed in an LTTE attack, whose driver was killed in 2012 faces a real chance of persecution on return to Sri Lanka and finds that, even when the claims are considered cumulatively, there is no real chance that the applicant would be persecuted for a Convention reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

4. Finally, at [82], the Tribunal finds:

   Also, the Tribunal finds, even when his situation is viewed cumulatively, there are no substantial grounds for believing that as a necessary foreseeable consequence of being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm.

The Application Before This Court

1. The applicant’s grounds can be summarised thus:

(a) That the Tribunal failed to properly consider article 1A(2) of the Convention relating to the status of refugees and, specifically, failed to consider the applicant’s claims as a member of a particular social group.  That PSG is the applicant’s family with reference to his father’s employment and relationship with the former and late president of Sri Lanka.

1. Under various headings from paragraphs [14] to [48], the Tribunal deals in detail with the applicant’s claim to fear of harm because of his membership and connection to his family.  The Tribunal dealt with the applicant’s claim of being kidnapped in December 2003; the applicant’s claim of threats after his father’s death; the applicant’s claim of a connection with a car accident in 2004; and further threats from 2004.

2. The Tribunal at [48] made findings of credit against the applicant thereby not accepting his evidence or all of his evidence.

3. Further, at paragraph [64] and following, the Tribunal specifically considered the applicant’s future risk of harm from LTTE stemming from the assertions of the applicant in his evidence set out above.

4. The Tribunal’s reasons make it clear that they understood and considered each of the applicant’s claims and assertions, but, as is the function of a merits reviewer, made findings of fact and credit at times against the applicant.

5. There is, therefore, no  merit in this ground of complaint.

b)That the Tribunal failed to considered section 424A(1) of the Act.

1. Section 424A(1) requires a Tribunal to give an applicant particulars of any information that the Tribunal considers relevant to its determination.

2. The applicant says in his contentions of facts and law at page 5:

   The Tribunal failed to put to the applicant why it was considering the applicant’s employment information provided for student visa application.  By not putting to the applicant the reason for considering such documents, that adversely affected the credibility of the applicant and made a jurisdictional error.

3. In its reasons at [40] the Tribunal discloses:

   The Tribunal put to the applicant pursuant to s424AA of the Act information that was contained in some documents that were provided to the Department with his wife’s student visa application.  This information indicated that the applicant was employed as a Director of Broach & Garner from 26 January 2006 and was still employed as at the date of the letter, 4 January 2008.  He received a monthly salary and a share of profits.  He would continue to receive his share of profits overseas.

   The Applicant stated that the company had gone broke and closed down before he left Sri Lanka.  The documents were not accurate.  The Tribunal indicated that an internet search suggested that it was still operative.  The Tribunal does not accept that Broach & Garner has closed down and did so before the Applicant left Sri Lanka.  The Tribunal finds that the Applicant was working there from January 2006 until he left Sri Lanka in 2008.  As the Tribunal has not accepted that he received threats after his father died and the LTTE were responsible for the motor vehicle accident, the Tribunal does not accept that the Applicant received threatening phone calls between 2006 and 2008 and that he was moving from place to place as he felt unsafe.

4. The relevant documents are a letter of 4 January 2008 from Broach & Garner (Pvt) Ltd, minutes of a meeting of that company of 3 September 2007, a certificate of incorporation, and a letter dated 8 January 2008 from the Applicant’s wife in support to her own visa application.

5. Section 424 of the Act provides:

   in conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review;

   without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information;

   a written invitation under subsection (2) must be given to the person:

   except where paragraph (b) applies – by one of the methods specified in section 441A;  or

   if the person is in immigration detention – by method prescribed for the purposes of giving documents to such a person.

6. The Applicant’s complaint then moves to section 441A in respect of the method of provision of the information. 

7. This argument, however, neglects the availability of section 424AA, which paragraph [40] of the Tribunal’s reasons clearly show was the section utilised.  That section allows the Tribunal to orally give the Applicant particulars of the information that the Tribunal considers would be a part of its reasons.

8. Paragraph [40] allows the clear inference that the proper process was followed. The Tribunal put the information to the Applicant, pursuant to section 424AA. The Applicant made response and comment also evident in paragraph [40].

9. In any event, I find merit in the alternative argument of the second Respondent that this factual platform falls clearly within the type of matter considered by the High Court in SZBYR[3]. The High Court in SZBYR in considering discretionary reliefs, said at [29]:

   The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants.  This is so because, even if the appellants be correct as to the proper operation of s424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus… while there may be cases in which a Tribunal’s breach of s424A affects its findings about the absence of a Convention nexus, this was not such a case.

   [3] [2007] HCA 26 at paragraphs 27 and 29.

1. In this matter the Tribunal made findings at [77], [79] and [80], which make particular findings in respect of the some of the Applicant’s current claims unnecessary.  For instance the Tribunal found that LTTE is no longer a threat in Sri Lanka.  The Tribunal made a finding that there is no real chance that the Applicant would be persecuted in the reasonably near future by LTTE or other Tamil militant group.  The Tribunal found that the Applicant does not now have a well-founded fear of persecution by reasons of his membership of the PSG (his family) or for reasons of his race or ethnicity.

2. The relevant documents here are discrete and refer only to the Applicant’s claims up to 2008.  It is clear that the Tribunal did, in any event, reject the Applicant’s claims, not on the basis of him being employed, but in not accepting that the Applicant received threats after his father died or that LTTE were somehow responsible for the motor vehicle, or that or in not accepting that the Applicant receives threatening telephone calls between 2006 and 2008. 

3. It follows, therefore, that I find no merit in ground 2 of the amended application. 

(c)The Applicant claims that the Tribunal acted without or outside of its jurisdiction and/or identified wrong issues or asked wrong questions or considered irrelevant material or ignored relevant material.

1. The first particular under this ground is that the Tribunal failed to consider the Applicant’s express claim that he was at risk of persecution because of his membership of a particular social group, ethnicity and political opinion.

2. This particular has been dealt with above where I found no merit. 

3. The second particular under ground 3 alleges that the Tribunal fell into error by differentiating between people having a high profile and those whose profile is not so high within the context of political affiliation with the UNP.

4. The Applicant had provided evidence of his family association with the political party and his own involvement.  It is clear, however, that the Tribunal did consider this claim, but made findings of credit which were open to it.  In the Tribunal’s reasons at [52] there is found:

5. As the Applicant did not mention the UNP involvement in his protection visa application and his evidence to the Tribunal was that he helped them in a professional capacity, as he was the director of an advertising agency that designed and printed their campaign poster. He also lent them vehicles.  The UNP, in their letter, did not indicate that he was a member. The Tribunal does not accept that the Applicant was a member of the UNP or a strong supporter. His evidence was that he never campaigned on their behalf. The Tribunal accepts that he may have known politicians socially and provided cars for them. The Tribunal does not accept that this level of involvement in the UNP would lead to a real chance of serious harm or a risk of significant harm.

6. It is clear, therefore, that the Tribunal considered the Applicant’s evidence and submissions.  Some claims were accepted and some rejected, with the Tribunal arriving at a factual determination.  It is not evident that the Tribunal failed to consider relevant information.  It is not evident that the Tribunal considered irrelevant information.  No mistake of fact is evident on the face of the reasons. 

7. Further, the Tribunal therefore followed a proper process of engaging in considering the evidence to arrive at a finding.  It did not, as alleged, establish some particular sub-class or a differentiation.  In this sense, the factual platform in Appellant S395202 v Minister for Immigration & Multicultural Affairs [2003] HCA 71 is distinguished. In that matter there was an unnecessary dichotomy put by the Tribunal between discreet homosexuals and indiscreet homosexuals. No such dichotomy was evidenced in this Tribunal’s considerations. There was no artificial division of the PSG into separate categories.

8. I find no merit to the ground of complaint.

(d)  That the applicant was denied natural justice

1. Specifically in his written submissions the Applicant claims that the Tribunal “questioned him in a fashion implying that he was not a credible witness and therefore preventing him putting forward his case”.  Secondly the Applicant says that the Tribunal did not properly consider the evidence in respect of injuries suffered by the Applicant where the Applicant put forward evidence as to his mental health and his participation in the hearing.

2. In its reasons at [55] the Tribunal noted the provision of a psychiatric report after the hearing referencing the Applicant’s claim of a poor memory and suffering shock after his father’s death.  That assessment also reported the Applicant as claiming a fractured leg and arm during the car accident and also suffering head injuries.  The report also noted that the Applicant completed year 12 and then worked in an executive position.  The psychiatrist noted that the Applicant described symptoms of post-traumatic stress disorder and grief.

3. Under this heading, the Tribunal conducted a detailed engagement with the Applicant’s claims in respect of memory difficulties, post-traumatic stress disorder and other injuries.

4. The psychiatric report was, of course, simply another piece of evidence to be considered with the whole of that evidence. And the Tribunal accordingly noted inconsistencies between the Applicant’s visa application and his reported history to the psychiatrist [58].

5. The Tribunal did, in fact, accept that the Applicant had suffered through two traumatic events in Sri Lanka.  Noticeably the loss of father in the bomb blast and then of his wife, mother and son in the motor vehicle accident.  The Tribunal accepted the possibility of post-traumatic stress disorder and memory difficulties.  Specifically, the Tribunal at [59], does not draw adverse inferences of credit because of failure to remember.  Rather, the findings are based on inconsistency and/or implausibility of evidence.  This is the very task of the Tribunal, being to take, engage and weigh the evidence and then make findings of fact and credit.  Again, there is no indication that the Tribunal failed to consider relevant material or took into account irrelevant material, in arriving at its finding.  They are findings that were reasonably available to the Tribunal on the evidence set out in much detail in its reasons. 

6. I find no merit in ground 4 of the application.

Ground Five – That the Applicant Failed to Review and Consider the application for Protection as per the Migration Act

1. The Applicant particularises this ground by simply repeating his submissions in relation to ground 1-4.  Having found no merit in any of those grounds, ground 5 is also unmeritorious.

Conclusion

1. There being no merit to the grounds set out in the amended application, that application will be dismissed with an order for costs in favour of the Second Respondent.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge McGuire.

Date: 5 February 2015