MZABR v Minister for Immigration and Border Protection
[2016] FCA 1231
•17 October 2016
FEDERAL COURT OF AUSTRALIA
MZABR v Minister for Immigration and Border Protection [2016] FCA 1231
Appeal from: MZABR v Minister for Immigration & Anor [2016] FCCA 892 File number: NSD 639 of 2016 Judge: BURLEY J Date of judgment: 17 October 2016 Catchwords: MIGRATION – application for a Protection (Class XA) visa – whether Refugee Review Tribunal failed to assess or made improper assessment of appellant’s imputed political opinion – whether Refugee Review Tribunal provided the opportunity to elaborate on appellant’s claims
ADMINISTRATIVE LAW – role of the Court to decide whether decision was invalid by reason of jurisdictional error – role of the Court not to consider factual merits of Tribunal’s decision
PRACTICE AND PROCEDURE – appeals – whether leave should be granted to raise new grounds of appeal
Legislation: Federal Court of Australia Act1976 (Cth) ss 37M, 43
Migration Act 1958 (Cth) ss 36, 474
Cases cited: AMU15 v Minister for Immigration and Border Protection [2016] FCA 841
Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485
MZABR v Minister for Immigration & Anor [2016] FCCA 892
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Date of hearing: 1 August 2016 Date of last submissions: 18 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 40 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms S Burnett of Clayton Utz
Counsel for the Second Respondent The Second Respondent filed a submitting appearance, save as to costs ORDERS
NSD 639 of 2016 BETWEEN: MZABR
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
17 OCTOBER 2016
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to the “Administrative Appeals Tribunal”.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs, assessed to be $5,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
This is an appeal from the judgment and orders of the Federal Circuit Court of Australia (FCCA) delivered on 27 April 2015; MZABR v Minister for Immigration & Anor [2016] FCCA 892. That Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) delivered on 5 February 2014 (Tribunal). The Tribunal had affirmed a decision of the Delegate of the Minister (Delegate) to refuse to grant the appellant a Protection (Class XA) Visa (Visa) under the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The appellant is a Tamil who was born in Batticoloa, Sri Lanka, in 1981. He arrived in Australia as an irregular maritime arrival on 25 July 2012 and lodged an application for the Visa on 5 November 2012.
The appellant seeks protection on the basis of his imputed political opinion. He claims that the Sri Lankan authorities, in particular the Criminal Investigation Department (CID) suspect him of being linked with the Liberation Tigers of Tamil Eelam (LTTE). He claims that in September 2007 the CID suspected that his mother was involved in a LTTE suicide bombing. She was detained, but later released. The appellant says that he supported her throughout the investigation and proceedings. Following that time, the appellant says that the CID harassed him because they suspected him of having links with the LTTE. The appellant fears that if he is required to return to Sri Lanka he will be kidnapped, tortured, detained and killed. He considers that he cannot benefit from the protection of the Sri Lankan authorities because the CID is an arm of the Sri Lankan Government and that, for the same reason, he cannot relocate to anywhere in Sri Lanka to avoid persecution.
The appellant also claims to be entitled to the Visa because of his ethnicity as a Tamil and on the basis of his membership of one or more of the following social groups; a Tamil man suspected of being associated with the LTTE; a Tamil man suspected of providing assistance to the LTTE; a Tamil man who departed Sri Lanka illegally; and a returned asylum seeker of Tamil ethnicity. In addition, the appellant provided evidence of his mother’s conviction for document fraud, although he did not claim that any adverse interest from the Sri Lankan authorities arose on the basis of this conviction.
The application for the Visa was refused by the Delegate on 26 March 2013. He then appealed to the Tribunal for review of the Delegate’s decision on 3 April 2013. The Tribunal conducted a hearing of the application and heard the appellant’s oral evidence, with the assistance of a Tamil/English interpreter, on 17 May 2013.
The Tribunal received submissions from representatives acting on behalf of the appellant from the Refugee Advice and Casework Service on 23 March 2013, 24 May 2013, 4 July 2013 and 31 January 2014.
On 5 February 2014, the Tribunal confirmed the Delegate’s decision.
THE TRIBUNAL’S REASONS
The Tribunal identified the central and subsidiary issues as follows (emphasis in original):
Does the applicant have a well-founded fear of Convention-related persecution?
ŸThe applicant’s need for protection – his conduct and travel history
ŸAllegations of LTTE association and involvement in the December 2006 bombing
ŸHis mother’s claimed conviction
ŸThe authorities’ sustained adverse interest in the applicant
ŸProspects as a Tamil returnee (failed asylum seeker and illegal departure)
(If he is not a refugee), is the applicant eligible for complementary protection?
The Tribunal concluded that the central issue of whether the appellant had a well-founded fear of persecution under the 1951 Convention relating to the Status of Refugees (as amended by the 1967 Protocol relating to the Status of Refugees) (Refugees Convention) should be answered in the negative; it also decided that the appellant was not eligible for complementary protection.
In relation to the question of fear of persecution, the Tribunal considered the appellant’s past conduct and travel history. It relevantly found that he had travelled extensively in South East Asia and India since obtaining his first Sri Lankan passport in April 2007. It also found that his ability to leave Sri Lanka and his willingness to return on many occasions raised doubts about whether he genuinely feared harm from the Sri Lankan authorities and whether they had any adverse interest in him. The appellant obtained his second Sri Lankan passport in July 2012, about two days before he left for Australia. The appellant’s ability to obtain and use genuine Sri Lankan passports during the period from 2007 to 2012 without incident, his failure to make serious inquiries of protection options in other countries, and his preparedness to return to Sri Lanka on numerous occasions without adverse consequence, all amounted to a very strong inference in the view of the Tribunal that the Sri Lankan authorities had no adverse interest in him.
The Tribunal rejected the appellant’s claims that the CID would continue to pursue him as a result of suspicions that it harboured as to his mother’s and his involvement in the 2006 assassination attempt. In this regard the Tribunal recorded the appellant’s claims that; in September 2007 the CID detained his mother at the airport when she was returning from a visit to her daughter in India; that they had questioned her because her personal details matched those of a LTTE suspect, a suicide bomber, who died in the December 2006 attempted assassination of the Sri Lankan Defence Minister, Gotabhaya Rajapaksa; that the appellant had arranged a lawyer and spent a lot of time and money in securing his mother’s release and that the appellant had funded and provided assistance to his mother in her later Court proceedings. The appellant claimed that the suspicion against his mother remained in place, and the CID began to suspect not only his mother but also the appellant and his entire family of having LTTE links.
The Tribunal found that there were inconsistencies and gaps in the appellant’s story concerning his mother’s prosecution and that the appellant had fabricated these claims for the purpose of his visa application. The Tribunal rejected the appellant’s claims that he was wanted by the CID in connection with the 2006 assassination attempt or that his mother was convicted of any fraud or related offences, whether in lieu of terrorism charges, or because she actually engaged in such activities.
Having found that the appellant was not wanted by the CID in connection with the 2006 assassination attempt and that his mother was not convicted of any document fraud or related offences, the Tribunal rejected all of the appellant’s associated claims. It did not accept that the CID repeatedly called him to their office, that the appellant went only with a lawyer for fear of being mistreated, that he and or other family members, such as his brother, moved from one location to other locations within Sri Lanka to avoid the CID or that the CID had come looking for him while he was still in Sri Lanka or since his arrival in Australia.
The appellant submitted a number of Sri Lankan court documents in Sinhalese together with his application which indicated that his mother had been charged with two offences, first, having used or obtained an irregular passport in her own name, after submitting a fraudulent national ID card and a fraudulent birth certificate, and secondly, having departed Sri Lanka without a valid passport. The documents indicated that she had pleaded guilty to the first charge and that the prosecution had withdrawn the second charge. The documents record that on 19 October 2007, a Sri Lankan court found that the appellant’s mother had three previous convictions, it sentenced her to 18 months “rigorous imprisonment”, suspended for five years, and a fine, or six months imprisonment if the fine was not paid.
The Tribunal found that the documents submitted, even on the appellant’s own account, contained inaccurate information and that the appellant was unable satisfactorily to explain his limited knowledge about what happened in the course of the case against his mother. It noted that country information available indicated that there is broad corruption in the Sri Lankan civil service such that public sector corruption and the bribery of public officials is “a problem” and that as such it paves the way for the production of fraudulent documents. The Tribunal observed that the Australian Department of Foreign Affairs and Trade was not in a position to comment on the authenticity of the documents. The Tribunal found that despite the appellant’s claims that the CID was concurrently pursing him, there was nothing to suggest that they scrutinised or prevented his travel to and from Sri Lanka, or the issuing to him of a new passport. Given these concerns and the country information available, the Tribunal decided to place “very little weight on the purported court documents as evidence that the applicant’s mother has been convicted of any offences”. On the evidence as a whole, the Tribunal concluded that “the applicant’s mother was not convicted” of document fraud or any document related offences whether in lieu of terrorism charges or otherwise.
Having made these findings, the Tribunal noted that the appellant did not raise with the Tribunal any additional fear based on his prospective return to Sri Lanka as a Tamil returnee or as a person who had departed illegally. The Tribunal recorded that the only concern that the appellant had voiced was his claim arising from the alleged CID pursuit of him. The Tribunal nevertheless considered whether, on the basis of the appellant’s Tamil ethnicity or the basis that he was to be a returned asylum seeker of Tamil Ethnicity who had departed Sri Lanka illegally, the appellant would suffer from persecution.
The Tribunal concluded that it was not satisfied that the appellant’s Tamil ethnicity gave rise to a real chance of him being mistreated upon his return. The Tribunal concluded that, having reviewed relevant country information, it was not satisfied that Tamils who are failed asylum seekers are at risk of Refugees Convention-related persecution for that reason alone. While there are some reported instances of Sri Lankan authorities targeting Tamils returning to Sri Lanka, and inflicting serious harm on them, the Tribunal was satisfied that those involve overwhelmingly returnees whom the authorities already suspect of having pro-LTTE or anti-government associations. The Tribunal had concluded that the appellant was not such a person.
Finally, the Tribunal considered whether the appellant met the criteria for complementary protection and concluded that, having made relevant findings as to the lack of interest of the CID in the appellant, that the appellant has not had any past experiences at the hands of the Sri Lankan authorities or paramilitaries or current attributes that put him at risk of significant harm if he returns to Sri Lanka.
Accordingly, the Tribunal found that the appellant did not satisfy subsections 36(2)(a) or 36(2)(aa) of the Act.
THE FCCA DECISION
The appellant was unrepresented before the FCCA. He relied on the following grounds of review:
1.That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.
The FCCA noted that at the hearing, the appellant explained that he had given all of his evidence in support of his claims but that they were rejected. The FCCA also noted that he had argued that he was constantly asked in the Visa process why he feared persecution when the CID was only concerned with his mother.
The FCCA expressed its reasoning in [21] of its decision as follows:
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.
The FCCA then concluded that no jurisdictional error had been established and that, having read the material before the Tribunal and examined the Tribunal’s reasons for its decision, the FCCA could see no error affecting the legality of that decision. Accordingly the application was dismissed.
It would appear from the FCCA’s characterisation of the appellant’s argument before it that, in truth, the appellant was seeking a merits review of the Tribunal’s decision.
THE APPELLANT’S GROUNDS OF APPEAL
The appellant’s Grounds of Appeal before this Court (quoted in full) are as follows:
(1)His Honour made an error when His Honour found that the Tribunal could not identify any jurisdictional error in considering claims that arose on the material before the Tribunal in failing to find that the Tribunal had been procedurally unfair.
Particulars
(a)The Tribunal did not make any assessment regarding the applicants mother’s association with LTTE, which involved implied political views.
(b)The Applicant had claimed representation of implied political opinion with special attributes constituting a particular profile.
(c)The Tribunal failed to consider that any political opinion (and did not consider this Convention nexus) with the association with LTTE.
(d)The Tribunal hearing did not provide opportunity to elaborate on the claims.
(2)His Honour made an error when His Honour found that the Tribunal failed to consider the claims of the applicant there was constructive failure to exercise jurisdiction
Particulars
(a)His Honour should have found that the Tribunal did not address whether his association with LTTE caused him the risk being targeted.
(b)The Tribunal constructively failed to address whether being associating with LTTE the Applicant’s particular profile of associating with LTTE would be persecuted.
The first respondent contended that as the Grounds of Appeal were not advanced before the FCCA, and no explanation for failing to raise them had been supplied and they are of doubtful merit, they ought not to be permitted.
It is important to note that the application to the FCCA was not an occasion to have the decision of the Tribunal, or the Delegate, re-heard. It was not a “merits review” hearing where the Court could look at all of the material before the Tribunal, perhaps receive additional evidence, and then substitute its own decision on the facts. The FCCA’s role was to review the Tribunal decision and to decide whether it was made by some legal error – procedural or substantive – which warranted the setting aside of the Tribunal decision and the application for the Visa being remitted to the Tribunal for rehearing. Section 474 of the Act means that the appellant had to satisfy the FCCA that the Tribunal’s decision was infected by jurisdictional error in order to engage the FCCA’s power and discretion to grant relief with respect to the Tribunal’s decision; see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 and AMU15 v Minister for Immigration and Border Protection [2016] FCA 841 at [20].
In this context it is appropriate to observe that these proceedings are an appeal from the decision of the FCCA. It is necessary to establish error on the part of the FCCA. Except in unusual circumstances, it is fundamental to such an appeal that the matters raised before this Court have been the subject of a hearing in the Court below. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 (VUAX) the Full Court said:
[46] In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].
[47] In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:
“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”
[48] The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.
In the present case the appellant, in response to a question from the bench, gave as his explanation for not raising the argument below the absence of proper representation before the FCCA. This is not an adequate explanation.
However, in order to determine whether it is appropriate to refuse leave to rely on the grounds it is necessary to consider whether or not they have clear merit, or, as the Full Court said in VUAX, to consider whether the proposed ground has “doubtful merit”. The first respondent made no submission to the effect that the additional grounds, if permitted to be agitated, would cause real prejudice.
The central ground raised in paragraphs (1)(a), (b) and (c) and 2(a) and (b) of the notice of appeal is, in effect, that the Tribunal did not make any assessment or made an improper assessment of the appellant’s claim that he or his mother were imputed to have a political opinion in support of the LTTE, and that he was in any risk of harm or persecution arising from such an imputed political opinion.
However, this was a central part of the appellant’s claims in his Visa application and was considered by the Tribunal in some detail. The Tribunal specifically had regard to the written submissions and the evidence advanced by the appellant (appendix A to the Tribunal’s decision). The Tribunal gave consideration to the appellant’s claim that he feared harm because of his mother’s suspected association with the LTTE. It further considered the appellant’s claim that the authorities would impute to him a link to the LTTE because of his Tamil ethnicity (at [53] to [58]) and because of his profile as a returned asylum seeker of Tamil ethnicity who had departed Sri Lanka illegally (at [59] to [72]). The Tribunal rejected those claims on the basis of anomalies in the appellant’s evidence, the conduct of the appellant, which contradicted his alleged fear of harm, and country information which was not supportive of his claims.
As noted above, the anomalies found by the Tribunal in the appellant’s evidence concerned inconsistencies and gaps in his explanation as to the circumstances surrounding his mother’s arrest and charges for fraud and also extended to the fact that during the period from 2007 to 2012 the appellant had been issued with a passport and was able to travel freely into and out of Sri Lanka.
In my view it was open to the Tribunal to reject the evidence of the appellant on this basis. It was open to it to find anomalies and gaps in his evidence and that the appellant had fabricated his claims for the purpose of his application. In this context it was also open to place no weight on or reject the evidence of documentation that purported to corroborate aspects of the appellant’s claim; Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485 at [36]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49].
Accordingly, I conclude that as the grounds identified in paragraphs (1)(a), (b) and (c) and 2(a) and (b) of the notice of appeal have no substantive merit, the appellant should not have leave to rely upon them in this appeal.
The remaining ground of appeal is articulated in paragraph (1)(d) and asserts that the Tribunal hearing did not provide the appellant an opportunity to elaborate on his claims. Again, this ground was not raised by the appellant before the FCCA.
I have been provided with a copy of the transcript of the Tribunal hearing. Having read the material it appears to me that the appellant, who was represented at the time of that hearing, was given a full opportunity to present such arguments as he thought were appropriate in support of his application for the Visa. The Tribunal received written submissions before and after the hearing was conducted. Accordingly, I consider that the remaining ground of appeal has no merit. For the same reasons as set out above in [35] I do not consider that the appellant should have leave to rely on the ground of appeal set out in [1(d)].
For completeness, I note that the FCCA considered that the appellant’s submissions before it were primarily focused upon the factual conclusions reached by the Tribunal. It appears to me that the same could be said of the appellant’s submissions before this Court, which in substance amounted to the appellant’s heartfelt disagreement with the factual conclusions reached by the Tribunal. It was appropriate for the FCCA to reject that submission; as that Court noted, strong disagreement with findings of fact does not establish that the Tribunal’s decision is affected by jurisdictional error. Having examined the reasons expressed by the Delegate and also the Tribunal, and having considered the transcript of the hearing before the Tribunal, I concur in the decision of the Tribunal that no jurisdictional error has been identified.
Costs
As the respondent has been successful in defending the appeal, the appropriate order is that the appeal be dismissed with costs. The first respondent seeks an order that costs be fixed pursuant to subsection 43(3)(d) of the Federal Court of Australia Act1976 (Cth) (Federal Court Act), and has supplied an affidavit from his solicitor, which sets out the costs incurred and estimates that upon taxation an award within the range of $4,700 and $5,500 would be made.
In my view in the circumstances it is consistent with the objectives articulated in section 37M of the Federal Court Act, to make an assessment of the likely costs. Accordingly, I order that the appellant pay the respondent’s costs, assessed in the amount of $5,000.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 17 October 2016
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