MZABR v Minister for Immigration

[2016] FCCA 892

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZABR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 892

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36

Applicant: MZABR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 406 of 2014

Judgment of: Judge Smith

Hearing date: 6 April 2016

Date of Last Submission: 6 April 2016

Delivered at: Sydney

Delivered on: 27 April 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr M. Glavac, Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

MLG 406 of 2014

MZABR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 25 July 2012. On 5 November 2012, he lodged an application for a protection visa. When that application was refused by a delegate of the Minister, he applied to the Refugee Review Tribunal[1] for review of the delegate’s decision. On 5 February 2014, the Tribunal made a decision to affirm the decision of the delegate. The applicant now seeks judicial review of the Tribunal’s decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. In order to succeed in his application the applicant must establish that the Tribunal’s decision was affected by jurisdictional error. For the reasons that follow, he has not done so and the application must be dismissed.

Background

1. The applicant claimed that in spite of the general problems from the Sri Lankan civil war, his family did not draw the attention of any of the Sri Lankan authorities until September 2007. At that time, however, his mother was stopped by the Criminal Investigation Division (CID) at an airport and questioned as her personal details matched that of a LTTE[2] suspect who had died in a December 2006 suicide attack aimed at the then Sri Lankan Minister of Defence. The applicant claimed that he was closely involved in defending his mother against prosecution and as a consequence, although his mother was found to be innocent, the CID then accused the applicant of having some more extensive involvement with the LTTE and in the attempted assassination.

   [2] Liberation Tigers of Tamil Eelam.

2. The applicant also provided evidence in support of his application showing that his mother had been convicted of a document fraud.

3. On 26 March 2013, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision. The applicant was represented for the purposes of that review by the Refugee Advice and Casework Service.

4. The applicant was invited to and attended a hearing conducted by the Tribunal on 17 May 2013. On the day of the hearing, after a request from the Tribunal, the applicant’s representatives sent to the Tribunal the written submissions provided to the Department. After the Tribunal hearing, the applicant’s representatives sent to the Tribunal further written submissions addressing matters raised at the hearing. In those further submissions, the applicant’s claims were summarised as being that he feared being persecuted by the Sri Lankan authorities for the following reasons:

   ·Ethnicity – Tamil

   ·Imputed political opinion – Supporter of the LTTE (due to the fact that his mother’s passport was implicated in an LTTE suicide bombing, the fact that he was alleged to be involved in the passport matter, and his Tamil ethnicity)

   ·Membership of one or more of the following particular social groups:

   oTamil men who are suspected of being associated with the LTTE

   oTamil men who are suspected of having provided assistance to the LTTE

   oTamil men who depart illegally from Sri Lanka

   oReturned asylum seekers of Tamil ethnicity

5. On 23 January 2014, some time after the hearing, the Tribunal wrote to the applicant noting the following matters:

   a)the effect of Ministerial Direction No. 56 in the requirement to take into account a report from the Department of Foreign Affairs and Trade dated 31 July 2013;

   b)the effect of the UNHCR Eligibility Guidelines from December 2012; and

   c)the fact that his wife, children and sister had now arrived in Australia, noting the claims in the applicant’s written submissions that the CID had been looking for him and harassing his family.

6. The Tribunal stated that it proposed to finalise the review in the following week and that it would take into account any further written submissions that the applicant wished to make before 31 January 2013.

7. The applicant’s representatives responded to this correspondence by letter dated 31 January 2014. In their letter, the representatives submitted that the applicant was at greater risk of serious harm by the authorities under the highly militarised, deeply suspicious and repressive conditions prevailing in Sri Lanka because of the matters which had been referred to in their earlier submissions as set out at [6] above.

The Tribunal’s decision

1. The Tribunal made its decision on 5 February 2014.

2. The Tribunal found that the applicant’s ability to obtain and use genuine Sri Lankan passports in the period from 2007 to 2012 without incident, together with his failure to make any serious enquiries about protection in other countries, his preparedness to return to Sri Lanka on numerous occasions and his ability to obtain a fresh Sri Lankan passport just before he left for Australia, were very strong evidence that the authorities had no adverse interest in the applicant for any reason and that the applicant had no subjective fear of any harm.

3. The Tribunal found that the applicant had fabricated the claims concerning the CID’s interest in his mother because the applicant had very little information about the charges brought against his mother, gave vague evidence about the questions asked of him by the CID, was able to travel in and out of the country and obtain a new passport in mid-July 2012 and, on his own evidence, the authorities had shown no interest in other family members.

4. The Tribunal did not accept that the applicant’s mother had been convicted of document fraud because, in spite of his claimed involvement in his mother’s case, he had limited and vague knowledge about that case and the documents provided by the applicant to support the claim referred to his mother having three prior convictions even though the applicant’s evidence was that his mother did not have any prior problems. The Tribunal also relied on information to the effect that fraudulent documents were readily available in Sri Lanka in light of public sector corruption.

5. The Tribunal found that the applicant had no prior adverse profile with the Sri Lankan authorities whether for any suspected LTTE links or for any other reason and so was not at risk of being targeted for such a reason. It found that the applicant faced no real chance of the CID, other Sri Lankan authorities or others targeting, kidnapping, detaining (for other than brief periods), torturing, bringing fabricated charges or killing the applicant if he returned to Sri Lanka for those reasons.

6. Even though the applicant stated at the hearing that his only fear related to his claim concerning the CID, the Tribunal considered the matters raised by the applicant’s representatives in their written submissions. First, it did not accept that the mere fact of being a Tamil or a Tamil male put the applicant at risk of being suspected of being an LTTE supporter; secondly, the Tribunal accepted that upon return to Sri Lanka the authorities would verify the applicants identity, ascertain that he is a failed asylum seeker, and determined that he departed Sri Lanka illegally. However it concluded that that process did not give rise to a real chance of him facing serious harm amounted to persecution. As to the applicant being a failed asylum seeker, the Tribunal found that the authorities would not impute to him any link with the LTTE on that basis or any other basis. The Tribunal also found that the applicant’s legal departure would not lead the authorities to draw any adverse inferences against the applicant and that, while he may be detained for perhaps a few days until a bail hearing in connection with his breach of the Immigrants and Emigrants Act, neither that nor any prospective punishment for such a breach amounted to persecution for a Convention reason[3].

   [3] Convention Relating to the Status of Refugees done at Geneva in 1951 as amended by the Protocol Relating to the Status of Refugees done at New York in 1967 [1954] ATS 5 and [1973] ATS 37.

7. In summary, the Tribunal found that there was no real chance of the Sri Lankan authorities, paramilitaries or anyone else inflicting serious harm amounting to persecution on the applicant for any Convention reason or reasons.

8. The Tribunal then considered whether the applicant met the criterion for complementary protection, that is the criterion for a protection visa found in sub-s.36(2)(aa) of the Migration Act 1958 (Cth). In this respect, it applied the findings of fact that it had made in connection with the other relevant criterion and also considered that the treatment that he might face for having illegally departed Sri Lanka did not amount to serious harm within the meaning of that term in ss.36(2A) and 5(1) of the Act.

9. For those reasons the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

1. The grounds of the application are:

   1.That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

   2.More details will be provided by the legal representative.

2. At the hearing before me, the applicant explained that he had given all of his evidence in support of his claims but that they were rejected. He also argued that he was constantly asked in the visa process why he feared persecution when the CID was only concerned with his mother.

3. The grounds in the application do not assist in identifying any jurisdictional error in the Tribunal’s decision. The applicant’s submissions at the hearing were primarily focused upon the factual conclusions reached by the Tribunal. Disagreement, even strong disagreement, with findings of fact does not establish that the Tribunal’s decision is affected by jurisdictional error. The applicant’s complaints concerning the interview and hearing process in which he was involved as part of his visa application and application for review also do not reveal any jurisdictional error. The relevant decision-makers were charged with ascertaining and determining the facts upon which they were required to take into account in assessing whether or not the applicant met the criteria for the grant of a protection visa. The fact that the process of ascertaining relevant facts included particular questions does not support any inference that the Tribunal (or the delegate before it) was doing anything other than what was required by the Migration Act.

Conclusion

1. The applicant has established no jurisdictional error in the Tribunal’s decision. Having read the material before the Tribunal and examined the Tribunal’s reasons for its decision, I can see no error affecting the legality of that decision. For those reasons, the application must be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 27 April 2016