MZACP v Minister for Immigration

[2015] FCCA 1262

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZACP v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1262

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 46A, 46A(2), 91R

1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Applicant: MZACP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 567 of 2014

Judgment of: Judge Hartnett

Hearing date: 21 April 2015

Delivered at: Melbourne

Delivered on: 15 May 2015

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Petrie

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 567 of 2014

MZACP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court, is an Application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 24 February 2014.  The Application was filed on 31 March 2014.  The Tribunal, in that decision, affirmed a decision of the First Respondent by his Delegate (‘the Delegate’) not to grant the Applicant a Protection (Class XA) visa (‘the protection visa’).

2. The grounds of the application are as follows:-

   “1. The Tribunal erred in holding that the confiscation of his licence and demanding his catch (sic) and money is not (sic) amount to significant harm under section 36(2) of the Act

   2. The Tribunal fell into jurisdictional error in that the confiscation of his licence and demanding his catch (sic) and supplying alcohol to the SLA and Navy personals is amount (sic) to serious and/or significant harm under section 91R of the Act.”

3. By Response filed 14 April 2014, the First Respondent opposed the Application for an order to show cause on the basis that the Tribunal Decision was not affected by jurisdictional error.

4. On 25 June 2014, the Court made, by consent, various procedural orders including provision for the Applicant to file and serve an amended application, if any, and written submissions.  The Applicant did neither of those things.  The First Respondent filed the Court Book on 27 November 2014, and its contents were introduced into evidence in the proceedings.  Further, the First Respondent relied upon an Outline of Submissions filed on 8 April 2015.  The First Respondent sought dismissal of the Application and that costs should follow in the sum of $6,825, as set out in the Federal Circuit Court Rules 2001 (Cth), Schedule 1 Part 3 scale of costs

History

1. The Applicant is a Sri Lankan national of Tamil ethnicity. He arrived in Australia on 29 May 2012 as an “irregular maritime arrival” for the purposes of s.46A of the Migration Act 1958 (Cth) (‘the Act’). On 23 July 2012, the First Respondent exercised his power under s.46A(2) of the Act to permit the Applicant to apply for the protection visa. The Applicant applied to the Department of Immigration and Citizenship (as it then was) (‘the Department’) for the protection visa on the same day.

2. The Applicant claimed in an interview with the Department on 13 July 2012 and in a Statutory Declaration annexed to his visa application to fear returning to Sri Lanka for reasons of persecution.  He described himself as being born in Udappu, Puttalam on 3 February 1987.  He claimed relevantly that:-

   a)he ran a fishery business in Sri Lanka, that required him to register the names of his fishermen workers with the Sri Lankan Navy and police, in order to get a fish pass from the Navy.  Such pass cost 5,000 rupees for each year;

   b)since assuming control of his father’s fishing business in 2006, the Navy and police, who were Sinhalese and part of the Sinhalese government, as claimed by the Applicant, had demanded from him fish and money on a regular basis;

   c)in 2010, after failing to answer a telephone call from the police, the Applicant was assaulted by a police inspector who punched him to the face and kicked him.  The Applicant fell over a bottle and broke the bottle.  The broken bottle cut his right arm causing him to lose a lot of blood and to become unconscious.  This incident required him to be hospitalised for three days and to remain in his home for about a month to recover;

   d)following this incident the Sri Lankan Navy and police continued to make their usual demands of him and, in May 2012, demanded that he pay 20,000 rupees for the celebration of Vesak Celebration of Lord Buddha’s birthday.  He told them he did not have that much money.  As a consequence, the Applicant claims the police inspector threatened him, that if he did not pay, the police inspector would file a false accusation that the Applicant was a Liberation Tigers of Tamil Eelam member (‘LTTE’).  Further, the Applicant was told that this would result in his arrest, detention, torture and death in prison;

   e)the Applicant left Sri Lanka to avoid being falsely accused of being affiliated with the LTTE and the resultant detention, torture and death that would inevitably follow;

   f)if the Applicant were to return to Sri Lanka he would be falsely accused, detained, tortured and then killed by the Sri Lankan police and Navy; and

   g)the Sri Lankan police and Navy would not protect the Applicant because they are part of the Sinhalese Government which is not interested in helping minority Tamils, such as the Applicant.  Further, the Applicant would not be able to relocate and live safely in Sri Lanka because his persecutors are the government.

3. In an undated subsequent submission, the Applicant’s registered migration agent/ authorised recipient (‘migration agent’) repeated these claims and provided the Department with extensive country information in support of the Applicant’s claims.

4. The Applicant attended an interview with the Delegate on 4 September 2012.  By Decision Record dated 19 November 2012 (‘the Decision Record’), the Delegate refused to grant the protection visa.  On 23 November 2012, the Applicant applied to the Tribunal for merits review of the Delegate’s decision.

5. On 19 December 2012, the Applicant was invited to appear before the Tribunal on 4 February 2013 to give evidence and present arguments relating to the issues in his case.  It was noted a Tamil interpreter would assist the Applicant. The Applicant’s migration agent provided the Tribunal with Written Submissions dated 29 January 2013.

6. By correspondence of 5 February 2013, the Applicant was invited to a rescheduled hearing as due to circumstances beyond the control of the Tribunal, the presiding member was unable to conduct the hearing on 4 February 2013.  The new hearing date and time were notified to the Applicant, the new hearing date being 22 February 2013.  Again, an interpreter in the Tamil and English languages was to be provided for the hearing.

7. At the hearing on 22 February 2013, the Applicant was represented by his migration agent. He provided further material for the Tribunal to have before it.

8. During the hearing on 22 February 2013, and the continuation of that hearing on 12 August 2013, the Applicant made the following additional statements, not previously raised,  and as correctly referred to in the submissions of the First Respondent:-

   a)in addition to demanding fish and the payment of money, the police and Navy would sometimes demand from the Applicant cigarettes and alcohol, and “other items”;

   b)if the Applicant did not provide the police and Navy with the items they demanded, they would not allow him to fish for two or three days;

   c)there was a police chief who would sometimes attend the Applicant’s hut, or telephone him, and demand that the Applicant provide him with alcohol; and

   d)that, since his departure from Sri Lanka, the authorities had visited his mother, including at her new home in Udappu, on six or seven occasions in an endeavour to locate him.

9. In the Applicant’s migration agent’s written submissions provided to the Tribunal dated 29 January 2013, no new factual claims were provided, although the Applicant’s migration agent characterised the Applicant’s claims according to his race, membership of a particular social group, and imputed political opinion.  No reference was made to the complementary protection regime.  In a second submission dated 27 February 2013 and provided to the Tribunal, the Applicant’s migration agent sought to respond to concerns raised by the Tribunal at the hearing conducted on 22 February 2013, in respect of the lack of country information regarding the incidents of extortion of Tamil fishermen by the Sri Lankan Army.

The Tribunal decision

1. In a careful and lengthy Decision Record, the Tribunal affirmed the decision of the Delegate not to grant the Applicant the protection visa. The Tribunal set out correctly the relevant law, including refugee criterion, complementary protection criterion, and the requirements of it to take into account policy guidelines prepared by the Department.  All of the claims made by the Applicant in his Statutory Declaration, written submissions with attached country information, interviews with the delegate, and claims made before the Tribunal, were considered by the Tribunal.

2. The Tribunal noted that at the hearing on 22 February 2013 and, again, when the Applicant appeared before the Tribunal on 12 August 2013, the Applicant was represented by his migration agent and assisted by an interpreter in the English and Tamil languages. Between the two hearings, the Applicant’s migration agent forwarded to the Tribunal submissions on behalf of the Applicant, including country information regarding extortion by the Sri Lanka Army and Navy of Tamils (on 27 February 2013). In the second tribunal hearing of 12 August 2013, new and relevant country information regarding penalties for illegal departure was discussed between the Tribunal Member and the Applicant. 

3. The Tribunal commenced its hearing by explaining its role, the proceedings and the law to be applied.  The Tribunal asked the Applicant about his background and matters arising as the Applicant put before the Tribunal his various factual claims.  In particular, the Tribunal asked the Applicant to talk about the problems he faced with the Navy and the police, and when those problems first started happening.  He asked what kind of things the police demanded from the Applicant and, likewise, what it was the Navy demanded from the Applicant.  The Tribunal asked the Applicant if the Navy or police had ever threatened him, and in what circumstances.  The Tribunal discussed with the Applicant the medical report before it as provided by the Applicant, going to an injury sustained to his right arm in June 2010, and the fact that notes on the report were cut off. Nevertheless there still existed a possible reference to an “alcohol smell”, and the injury possibly being “self-inflicted”. The Tribunal asked the Applicant about each and all of the allegations made by him and the history provided by him since arriving in Australia.  It explored with him his various claims, including the returnee failed asylum seeker claim.  The Tribunal said as to the country information considered by it:-

   “81. The Tribunal put to the applicant country information which might lead it to doubt the credibility of his claims.  The Tribunal put to the applicant information from DFAT that it was not aware of reports that the Navy takes Tamil fishermen’s catch.  The Tribunal also advised that information before it did not indicate that Tamil fishermen in the applicant’s area have been the subject of extortion.  Furthermore, country information did not indicate that it was the navy that issued fishing passes.  The Tribunal also referred to the applicant’s claims of being harassed simply as a Tamil, and that country information indicated that simply being a Tamil male or a Tamil was not sufficient to give rise to a risk of harm.

   82.  Regarding the applicant’s claims of having left Sri Lanka illegally, the Tribunal put to him (sic) stating that punishment for leaving Sri Lanka illegally is rarely enforced.  The Tribunal also put to the applicant information that simply being a ‘failed asylum seeker’ was not enough to give rise to an imputed political opinion or a real chance or real risk of harm.”[1]

   [1] Refugee Review Tribunal’s Decision Record dated 19 November 2012 at [81] to [82].

4. The Tribunal allowed the Applicant an adjournment to speak with his migration agent before responding to the Tribunal’s concerns. 

5. In the second tribunal hearing on 12 August 2013, the Tribunal advised the Applicant that further country information had become available regarding the treatment of returnees who had illegally departed Sri Lanka.  It put to the applicant that people who left Sri Lanka illegally were being charged with offences under Sri Lankan immigration law.  The Tribunal put to the Applicant that this is a law of general application which appears to be applied in a non-discriminatory manner, and therefore would not constitute serious harm.  The Tribunal outlined information indicating that individuals charged with illegal departure offences are being released on personal bail, subject to not having been involved in people smuggling or having previous criminal convictions.  The Applicant confirmed that he has not been involved in people smuggling or had any previous criminal convictions. 

6. Further, the Tribunal:-

   “… put to him [the Applicant] that the information before it indicated that he would only be in jail for a few days minimum before being released on personal bail.  It advised him of the possible punishments if convicted [,] but that information indicated that the most likely outcome would be a fine rather than imprisonment.  The Tribunal further put to the applicant information regarding prison conditions which affected all prisoners and its assessment that a real chance of serious harm or a real risk of significant harm may only arise if he was imprisoned for a lengthy period of time rather than days or weeks.”[2]

   [2] Refugee Review Tribunal’s Decision Record dated 19 November 2012 at [93].

7. The Tribunal put to the Applicant credibility concerns it had, as they arose, giving the Applicant an opportunity to respond. 

8. The Court notes that the Applicant has not alleged, and the materials in the Court Book do not suggest, that the Tribunal in any way failed to comply with its obligations to afford the Applicant procedural fairness in accordance with Part 7 Division 4 of the Act. Certainly, on reading the Court Book and the Decision Record, there is no possible claim in respect of this.

9. The findings and reasons of the Tribunal are accurately summarised in the First Respondent’s Submissions as follows.  The Tribunal:-

   a)found that some of the Applicant’s claims were not consistent with country information and were somewhat implausible.  The Tribunal formed the view that the Applicant exaggerated his claims and that some of his claims should not be accepted.  The Tribunal cited the following examples:-

   i)the Tribunal had difficulty accepting the applicant’s claim that he was not able to pay 20,000 rupees to the police which led him to flee Sri Lanka but was able to pay for his journey to Australia shortly thereafter; and

   ii)the Tribunal had difficulty accepting the Applicant’s claim that the police travelled to Udappu specifically to look for the Applicant on several occasions;

   b)while the Tribunal accepted that the Applicant provided money, fish and other items to the authorities, the Tribunal found that the Applicant provided these goods in the form of bribes to the authorities in order to assist with the operation of his fishing business, rather than necessarily as a result of being threatened with harm if he did not do so.  The Tribunal was also willing to accept that the Applicant’s boat pass was confiscated for periods of two to three days in instances where he did not comply with the demands of the authorities.  However, the Tribunal found that the Applicant’s claims of having to provide various items to the authorities on a daily basis to have been exaggerated and the Tribunal did not accept that the Applicant would have been able to run his fishing business if this were the case, noting the Applicant’s observation that his business was otherwise “good”.  Further, at no time did the Applicant seek to establish his fishing business elsewhere during the six years that he managed it;

   c)the Tribunal accepted that the Navy may have come to the Applicant’s hut on one occasion and accused him of being involved with LTTE, but found that no further action was taken by the Navy against the Applicant and therefore found that the Applicant was not seriously suspected of being associated with the LTTE.  The Tribunal also accepted that the Applicant may have been required to present his registration details to the Navy but found that the requirement to do so does not constitute serious harm or significant harm.  The Tribunal did not otherwise accept that the Navy threatened to “take the Applicant away” if he did not comply with their demands;

   d)in response to the Applicant’s claim that, by reason of the authorities’ interest in him and his Tamil ethnicity, he would be accused of being suspected of, or imputed with, a political opinion in support of the LTTE, the Tribunal found that the threats made by the authorities to accuse him as having connections with the LTTE to not be credible and were not intended to be acted upon.  The Tribunal found that the Applicant was never seriously suspected of or threatened by the authorities to be an LTTE member or associate;

   e)while the Tribunal accepted that the Applicant received an injury to his arm in June 2010, it did not accept that the injury was caused in the manner he claimed.  In particular, the Tribunal did not accept that the Applicant was visited by police officers after his mobile phone battery ran out, that they beat him and ordered him to report to the police station, or that he was beaten or kicked at the police station during which he fell on a glass bottle;

   f)the Tribunal did not accept the Applicant’s claim that in May 2012, or on any other occasion, that he was requested by police to pay 20,000 rupees on the basis that the Applicant’s evidence was vague and implausible regarding his inability to pay.  The Tribunal therefore did not find that the Applicant was threatened by police if he failed to make this payment;

   g)the Tribunal did not accept that the police travelled to Udappu on several occasions to inquire of his whereabouts.  The Tribunal considered it implausible that the police would have travelled several hours for what, by the Applicant’s evidence, were not large amounts of money or fish;

   h)the Tribunal did not accept that the Applicant would be perceived as being wealthy because, although the Applicant said his business was “good” he also stated that he earned less than other fishermen in the area due to having to pay bribes;

   i)although the Tribunal accepted that the Applicant may have paid bribes, it did not accept that the payment of a bribe constitutes serious harm or significant harm.  Similarly, although the Applicant accepted that his boating licence may have been confiscated for two to three days on occasion, the Tribunal did not accept that this constitutes serious or significant harm.  Given these findings, and the Tribunal’s rejection of the Applicant’s claim to have been beaten by the police in 2010 as alleged, in addition to rejecting his claim that the authorities have subsequently visited his mother, the Tribunal found that the Applicant did not suffer serious or significant harm in the past while operating his fishing business.  The Tribunal, therefore, did not accept that there would be a real chance that he would face serious harm as a Tamil businessman if he returned to Sri Lanka;

   j)on the basis of country information, the Tribunal found that if the Applicant returned to his home area in Sri Lanka, and continued fishing the prospect that he would have to pay bribes, or risk having his boat licence confiscated, is remote;

   k)the Tribunal did not accept that the Applicant would be imputed with a pro-LTTE government opinion because he is a Tamil or because he made an asylum claim in Australia.  The Tribunal also did not accept that the Applicant would face harm on the basis that he is a Tamil, a Tamil male or a wealthy Tamil businessman;

   l)the Tribunal also found that the Immigrants and Emigrants Act 1948, to the extent it is applied to the Applicant, did not have a discriminatory intent or impact and, therefore, was a law of general application that does not give rise to persecution under the Convention.  Relying on country information, the Tribunal otherwise did not accept that the Applicant would face a real chance of serious harm for a Convention reason whilst on remand in Sri Lanka for a short period of time, or for having to pay any fine as a consequence of having departed Sri Lanka illegally;

   m)the Tribunal found, for similar reasons, to its findings in respect of the Applicant’s claims under the Refugee Convention,[3] that there were not substantial grounds for believing that there is a real risk the Applicant would suffer significant harm, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, including on the basis of being a Tamil, a Tamil male, a wealthy Tamil businessman, a Tamil businessman unable to comply with police demands, a failed asylum seeker or for having departed Sri Lanka illegally.

   [3] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.

Consideration

1. The Court is satisfied that the Tribunal performed its task as required and that its factual findings were open to it on the evidence before it.  No jurisdictional error attends the decision.  The factual findings are a matter for the Tribunal and not for this Court.

2. The oral submissions of the Applicant at hearing were that if he went back to Sri Lanka, he would have a lot of problems, because of his Tamil ethnicity, and that he would be, again, tortured or face the same issues. Such submissions do not lead the Court to determine that the Tribunal decision contains jurisdictional error. The Tribunal, in great detail, considered the claims, and each and every one of them, put before it by the Applicant. It both rejected the factual foundation of some claims, and found in respect of others that they did not amount to serious or significant harm under s.36(2) of the Act for the purposes of s.91R of the Act. The Tribunal was not required to critically accept any or all of the claims made by the Applicant.[4]  The Tribunal was able to consider country information, comprehensively so, and determined for itself such country information it relied upon, and what weight it gave to such information.  There was no error of law.

   [4] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at [169] to [170].

3. The Tribunal considered all those claims which arose from the material before it and correctly applied the law. The application will be dismissed and costs shall follow the event.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 15 May 2015