MZADH v Minister for Immigration

[2015] FCCA 1261

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZADH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1261

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

Legislation:

Immigrants and Emigrants Act (Number 31 of 2006) (Sri Lanka)

Migration Act 1958 (Cth), s.36(2)(a)

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

Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609
SZSHV v Minister for Immigration and Border Protection [2014] FCA 323

Applicant: MZADH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 768 of 2014

Judgment of: Judge Hartnett

Hearing date: 23 April 2015

Delivered at: Melbourne

Delivered on: 15 May 2015

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 768 of 2014

MZADH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

History

1. The Applicant was born on 8 November 1994.  He is now 20 years of age.  He was born in Udappu, Puttalam District, a North Western Province in Sri Lanka.  He is a citizen of Sri Lanka. He is of Tamil ethnicity and Hindu religion.  He entered Australia by boat on 24 June 2012 as an irregular maritime arrival, having departed Sri Lanka illegally. 

2. On 2 October 2012, the Applicant lodged an application for a protection visa.  A statutory declaration was made by him on 2 October 2012 which detailed his claims.  His claims were:-

   a)that he left his country because of many personal and financial problems.  They included:-

   i)the Sri Lankan Army would stop his fisherman father and demand the fish from him.  If his father did not provide the fish to them, they would beat him.  Their family had a lack of food afterwards.  They only had food twice a day and sometimes once a day;

   ii)the Sri Lankan Army tortured him to make him work for them.  They wanted him to cut grass, clean the camp area and buy cigarettes for them.  If he did not follow their instructions, they threatened that they would beat him.  Due to this, the Sri Lankan Army stopped him from attending school;

   iii)in approximately 2010, the Sri Lankan Army had a white van that would kidnap people and kill them.  In 2011, there was a greaseman who would jump over people’s houses and torture them.  The village priest’s mother was killed by the greaseman. The Applicant was so afraid, and his family was so afraid, they could not sleep in their own homes.  They would sleep at other people’s homes.  The greaseman was never caught, but people in the village said that he would go into the Sri Lankan Army camp;

   iv)he is a young Tamil male who will be targeted by the Sri Lankan Army.  Everywhere in Sri Lanka is surrounded by Sinhalese people, and he would not be able to relocate or live in any part of the country;

   v)he will be kidnapped and killed by the Sri Lankan Army if he returns to his country.  Further, if he returns to his country, he will be targeted and the authorities will not protect him; and

   vi)he believes he will suffer significant harm because the Sri Lankan Army or the white van, will capture and torture him.

3. On 4 February 2013, the Delegate refused to grant the visa.  The Applicant lodged an application for review of the Delegate’s decision with the Tribunal on 11 February 2013.  On 19 February 2013, the Tribunal invited the Applicant to appear before it to give evidence and present arguments relating to the issues in his case.  The hearing was arranged for 27 March 2013, and it was noted that an interpreter in the Tamil and English languages would be available to assist the Applicant.  The Applicant did not attend that scheduled hearing date in circumstances as described in correspondence from his registered migration agent/ authorised recipient (‘migration agent’), BMA Lawyers, dated 9 July 2013.  Because of that, there was a further invitation to appear before the Tribunal forwarded to the Applicant’s migration agent on 10 July 2013.  That invitation to appear before the Tribunal had a hearing date of 24 July 2013.  Submissions of 20 March 2013 were forwarded to the Tribunal from the migration agent acting on behalf of the Applicant prior to 24 July 2013.

4. On 24 July 2013, the Applicant appeared at a hearing before the Tribunal, assisted by his migration agent and an interpreter.  Thereafter, further written submissions were lodged with the Tribunal on the Applicant’s behalf and on 12 August 2013. 

5. On 26 August, the Tribunal wrote to the Applicant using the procedure in s.424A of the Migration Act 1958 (Cth), requesting his comments or response to potentially adverse information about the existence or otherwise of an army camp in the Applicant’s home village. The Applicant responded on 20 September 2013.

6. The Tribunal, by a decision made 31 March 2014, concluded that the decision under review should be affirmed.

Judicial Review Hearing

1. The Applicant filed his Application for judicial review of the Tribunal decision with an Affidavit in support on 28 April 2014.  The grounds of that application are as follows:-

   “1.    The Refugee Review Tribunal did not afford me procedural -fairness.

   2. The Refugee Review Tribunal applied the wrong legal test.”

2. The Applicant sought an order that the decision of the Tribunal be quashed and that a writ of mandamus issue directed to the Tribunal and First Respondent requiring them to determine the Applicant’s application according to law.  The First Respondent sought dismissal of the application and costs.

3. On 16 July 2014, Registrar Caporale made orders by consent. Order number 3 of such Orders was as follows: -

   “3. By 27 February 2015, the Applicant file and serve:

   3.1 [A]n amended application, if any, with proper particulars of the grounds of the application;

   3.2   [A] supplementary court book, if any; and

   3.3   [W]ritten submissions.”

4. I note the Applicant did not file any amended application, nor any written submissions. The First Respondent relies on Written Submissions filed by it on 9 April 2015, and the evidence as contained in the Court book, which has been filed and is in evidence before the Court.

5. At the hearing of the matter, the Applicant was asked if he wished to particularise the grounds on which his application depended.  The Applicant submitted, with respect to ground 1, that the interpreter at the Tribunal hearing did not interpret properly; that he had naturally forgotten childhood things in recounting facts to the Tribunal; and that the Tribunal member was a huge, hefty person, who intimidated him by loudly asking questions of him.  As a consequence, he did not give the right answers.  In respect of ground 2 of the Applicant’s application, he said simply that the Tribunal member was asking things of him in circles, and that he could not answer properly.

6. In respect of the Applicant’s claims made on the hearing the Court observes the following:-

   a)the complaint concerning the interpreter was not raised by the Applicant at the Tribunal hearing, nor in submissions which were forwarded after that hearing, by an experienced firm of migration agents acting on behalf of the Applicant, nor by the Applicant himself.  No complaint in respect of the quality of interpretation at the Tribunal hearing had previously been made. No particulars were provided by the Applicant at the hearing;

   b)it is the Tribunal’s role to undertake the questioning of the Applicant in order to better understand the matters put before it by him.  There is nothing in the Tribunal statement of decision and reasons, nor the post hearing submissions made by the Applicant’s migration agent, that would suggest that the mode of questioning or fact of questioning by the Tribunal was procedurally unfair; and

   c)the difficulties of remembering back to childhood were acknowledged by the Tribunal during the course of the hearing. The Tribunal took that into account. Nevertheless it found that the Applicant provided significant inconsistencies in his historical account to the Delegate, and subsequently the Tribunal, which were not simply absentmindedness on the part of the Applicant, or understandable failure to remember matters.  The Tribunal’s core finding, over and above the adverse credibility findings made by it, was that the Applicant had no profile in Sri Lanka such that he was at risk of serious harm should he return to that country. Otherwise, the Tribunal relied on country information in respect of the situation in Sri Lanka now, as opposed to the period of time in relation to which the Applicant made complaint.

7. The Tribunal noted in its Decision Record (paragraph 20) that on 20 March 2013, the lengthy written submission of the Applicant’s migration agent received by it included:-

   a)A summary of the Applicant’s claims as per his statutory declaration, but submitting the Applicant’s father was targeted by the Sri Lankan Navy, not the Army.

   b)New claims that the Applicant:-

   i)will be ostracised, imprisoned indefinitely or killed by the Sri Lankan authorities because he left Sri Lanka illegally (and sought asylum in Australia).

   ii)on re-entry to Sri Lanka the Applicant will be stringently questioned, imprisoned and killed by the Sri Lankan authorities (Army and Criminal Investigation Department) because he applied for asylum in Australia.

   c)Country information regarding the torture of failed Tamil asylum seekers from the United Kingdom reported by Tamils Against Genocide, extracting the United Kingdom Border Protection Agency Operational Guidance Note for Sri Lanka (May 2012), Freedom From Torture (May 2012), Human Rights Watch (March 2012) and the Canadian Immigration Review Board August 2011.

   d)Categorisation of the Applicant’s claims to relate to;

   i)his race, Tamil;

   ii)membership of the particular social groups;

   (i)failed asylum seekers in Australia.

   (ii)Sri Lankan Tamil community – Tamils are a distinct social group.

   e)Submissions that:-

   i)the Applicant’s age and fear are reasons for his inability to consistently recollect things clearly and thus considered not a credible witness by the Delegate.  He is relatively uneducated and faced a torment in his short life.  He is without the support of family or friends;

   ii)the threat of attack by the greasemen is ongoing.  A report from an online art and politics magazine was extracted regarding greasemen attacks in north and east Sri Lanka in 2012. A list of articles about greasemen attacks in August and September 2011, from the website TamilNet, in the east of Sri Lanka, said to be coordinated in government in Colombo was provided;

   iii)the Applicant and his family face ongoing threats because they are Hindu and Tamil.  No country information was attached to support the threat regarding the religion of the Applicant.  Country information was extracted regarding the general situation for Tamils, largely related to Tamils in Colombo and the north and east of Sri Lanka, and persons with connections to the Liberation Tigers of Tamil Eelam (‘LTTE’);

   iv)the Applicant is at risk of being arbitrarily deprived of his life.  He and his family have been subject to anti-Tamil treatment by the Sri Lankan authorities.  He will be questioned because he has been away from Sri Lanka for an extended period.  He has a risk of being tortured, or suffering cruel or inhumane punishment or degrading treatment or punishment because he has suffered such harm in the past, through mental torment and being unable to live freely and happily as other Sri Lankans; and

   v)a conclusion that the situation for Tamils in Sri Lanka is dangerous, particularly those returning as failed asylum seekers.

8. The Tribunal also noted the supplementary written submissions following the hearing that were provided to it and in paragraph 21 of its Decision Record noted those submissions included:-

   a)submissions regarding the Tribunal assessing the credibility of the Applicant.  It was said the Applicant was unfamiliar with the immigration process and fearful of speaking openly because he lived his life in fear of the authorities.  Repeated were earlier submissions about the Applicant’s age, education and the need for an interpreter.  The Applicant, it was claimed, had only small inconsistencies in his evidence;

   b)country information regarding the “Sinhalisation” of traditional Tamil areas in Sri Lanka;

   c)country information about harassment and abductions by the Sri Lankan police and military in the home village of the Applicant from the World Socialist website dated February 2009.  It referred to the area being poor and badly serviced, with restrictions on fishing rights and a small navy camp.  Students dropped out from high school due to a lack of money to pay the teachers;

   d)a claim the Applicant does face a risk of harm while on remand.  Amnesty International reported on the attacks of persons held on remand at a remand centre in Colombo.  The United States of America Department of State reported on long remand periods.  It was submitted detention conditions are horrendous, but no supporting country information was extracted.  The International Committee of the Red Cross (‘ICRC’) referred to being denied access to remand and regular prisoners for part of the report year, but that year was not identified in the extracted information; and

   e)the Sri Lankan Government it was claimed, continues to seek to control Sri Lanka and subject Tamils to serious harm.

9. In paragraph 24 of its Decision record, the Tribunal said:-

   “24. In summary, the applicant’s claims relate to:

   a.  His race – Tamil

   b.  His religion – Hindu

   c.  His political opinion – implied to be pro LTTE/anti-government because of his being a Tamil and because he applied for asylum in Australia

   d.  His membership of the particular social groups

   i)  Tamils

   ii) Failed asylum seekers

   iii)     Persons who illegally departed Sri Lanka”

10. At the commencement of the Tribunal hearing, the Applicant stated that all the information in his claims was correct.  He had no new information to add.  The Tribunal told the Applicant it considered his credibility was an issue during the hearing.  The Tribunal found the Applicant to have “exaggerated key parts to his claims and fabricated other claims of past harm”.[1]  The Tribunal noted that it put a number of difficulties with the Applicant’s evidence to the Applicant, including inconsistent evidence given by him during the course of the Tribunal hearing.

    [1] Refugee Review Tribunal Decision Record at [29].

11. In respect of some part of that inconsistency, and when queried about it by the Tribunal, the Applicant said his memory was not good.  When asked by the Tribunal why the Applicant’s memory was not good, the Applicant replied “these things happened when he was younger and if he knew he was coming here, he would have kept it in his memory better.”  The Tribunal noted the Applicant remembered the claims when he prepared his statement and had his interview with the Delegate.  The Tribunal considered the Applicant’s inability to spontaneously discuss his prior claims weighed in favour of its finding that he had exaggerated his claims and was not relying on a recollection of events which genuinely occurred. In particular, the Tribunal noted the Applicant raised illegal departure as a reason for fearing return to Sri Lanka, although he had never made that claim before (although it was very briefly referred to in the pre-hearing submissions of the migration agent).[2] The Tribunal noted the Applicant’s evidence regarding his claims for protection was not spontaneous in that he appeared to be giving evidence in a manner that had been rehearsed.

    [2] Refugee Review Tribunal Decision Record at [35].

12. The Tribunal said, at paragraph 43 of its Decision Record:-

    “Due to the inconsistencies and non-persuasive explanations, as well as the country information there is no army camp in existence in the applicant’s home village during the later years he claims he was taken to work there, the Tribunal rejects the applicant was ever taken by the army to work at the army camp, either from school, home, on his way to Temple or after he commenced work at the fabric factory.  It follows the Tribunal rejects he was prevented from attending school, nor was he tortured or threatened to be beaten.  The Tribunal considers the applicant has fabricated these claims to create a profile which would put him at potential harm from the Sri Lankan authorities so as to apply for protection.”

13. The Tribunal went on to consider whether the Applicant had a well-founded fear of persecution arising from his Tamil ethnicity.  Relying on the 2012 United Nations High Commissioner for Refugees (‘UNHCR’) Eligibility Guidelines, the Tribunal noted that the situation for Tamils in Sri Lanka had changed significantly since hostilities between the government and the LTTE ceased in 2009.  As the Applicant did not fall into any of the categories at risk that were identified by the UNHCR, and the Applicant’s account of having suffered past harm had been rejected on credibility grounds, the Tribunal concluded that Tamils did not face a real chance of suffering serious harm inflicted by the Sri Lankan authorities on account of their ethnicity.

14. The Tribunal rejected, on credibility grounds, the Applicant’s claim that as a Hindu he had been prevented from attending the temple and that he had been taken to work at the army camp.  Otherwise, his claims as to persecution on account of his religious beliefs were vague and generalised and the Tribunal was not satisfied that the Applicant had a real chance of persecution on account of his religion now or in the foreseeable future should he return to Sri Lanka.

15. The Applicant’s fear of “greasemen” attacks was rejected on the basis of country information, that such attacks had ceased, which led the Tribunal to conclude that there was only a remote risk of the Applicant suffering harm from “greasemen”, should he return to Sri Lanka in the reasonably foreseeable future.

16. As a returned failed asylum seeker who had departed Sri Lanka illegally, the Tribunal found, based on country information, that there was not a real chance that the Applicant would be imputed with either pro-LTTE or anti-government political opinion and, as such, would not be discriminated against or be placed at risk of suffering serious harm upon return to Sri Lanka in the course of being processed by the authorities at Colombo Airport, or after being released into the community.

17. The Tribunal found a law of general application would apply to the Applicant in relation to his illegal departure, which would not be applied in a discriminatory way, and the prosecution of the Applicant for breaching Sri Lankan immigration laws would not amount to persecution. The Tribunal said:-

    “The Tribunal accepts that the applicant departed Sri Lanka without possession of his Sri Lankan passport and not from an approved port, in breach of the IEA [Immigrants and Emigrants Act (Number 31 of 2006) (Sri Lanka)]. After assessing all the evidence before it, the Tribunal is satisfied that, on return to Sri Lanka, the applicant will be detained for questioning and security and character checks will be undertaken. He will be arrested, charged, held on remand then bailed on offences under the IEA because he departed Sri Lanka illegally. Again, the Tribunal is mindful it must give regard not only to the outcome of any interrogation or questioning, but also whether there is a risk of harm during the process the process (sic) involved in attaining that outcome (SZQPA v MIMA [2012] FMCA 123). The Tribunal considers the offences under the IEA are laws of general application. On the face of the wording of the IEA legislation and the information regarding the implementation of the IEA before the Tribunal, the Tribunal is not satisfied the IEA laws are discriminatory in there (sic) terms or enforced in a discriminatory way. The laws apply to all Sri Lankan citizens who depart Sri Lanka in breach of the IEA laws. Any harm the applicant may suffer arising from punishment for an offence under the IEA has no element of persecution for the purpose of s.91R(l)(c) and therefore is not persecution (SZQPA v MIMA [2012] FMCA 123). The Tribunal does not accept that his prosecution for breach of Sri Lanka migration laws amounts to persecution.”[3]

    [3] Refugee Review Tribunal Decision Record at [79].

1. The Tribunal concluded that having considered the Applicant’s claims individually and cumulatively, including his age, his religion, his occupation as a fisherman and his having lived in a Tamil area, he would not face a real chance of serious harm due to his race, religion and imputed political opinion or membership of a particular social group, or for any other Refugee Convention reason,[4] now or in the reasonably foreseeable future, should he return to Sri Lanka.

   [4] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.

2. The Tribunal considered the complementary protection provisions of the Act and based on its findings of fact, in relation to the Refugee Convention claims,[5] concluded that there was no substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia, there is a real risk the Applicant will suffer significant harm.

   [5] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.

Consideration

1. There is no basis for the Applicant to argue that the Tribunal failed to afford him procedural fairness.  The Applicant was represented by a competent legal representative throughout the review process.  The Tribunal exercised its discretion in allowing the Applicant an opportunity to appear before it by its rescheduling of a second hearing, following the applicant’s failure to attend the first.  The Tribunal properly put adverse information to the Applicant on a number of occasions during the course of the Tribunal hearing, including allowing a 10 minute adjournment for the Applicant to confer with his migration agent, despite the Applicant indicating that he did not wish to provide a response to the matters put to him.  The Tribunal also invited post hearing written submissions from the Applicant’s legal representative. The Tribunal provided a very detailed and considered Decision Record and there is nothing to suggest that it failed to fulfil its statutory obligations under Part 7, Division 4 of the Act in the conduct of the review, or in any other manner failed to afford the Applicant procedural fairness.  There is no suggestion nor was there complaint about the quality of the interpreting service provided to the Applicant at the Tribunal hearing.  The Applicant’s first ground of application is entirely without foundation.

2. The Applicant complains of the Tribunal’s adoption of a wrong legal test but does not identify that which it is complained of. The Tribunal correctly set out the law to be applied to the matter before it, and concluded, on the evidence before it, being a conclusion open to it on such evidence, that the Applicant was not a person to whom Australia owed protection obligations, pursuant to s.36(2)(a) of the Act. The Tribunal applied the correct test in respect of Australia’s complementary protection obligations in its consideration of whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there is a real risk the Applicant will suffer significant harm. The Tribunal’s conclusions on this matter were open to it.

3. The Tribunal’s credibility findings were as submitted by Counsel for the First Respondent, based upon facts having logical and probative weight,[6] and were findings of fact par excellence,[7] which are not open to judicial review.

   [6] SZSHV v Minister for Immigration and Border Protection [2014] FCA 323 at [31], per Flick J.

   [7] Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609 at [65].

4. The Tribunal considered current country information and the choice of, and assessment of weight, to be placed upon such country information, is a matter for the Tribunal.  The Tribunal considered the possible detention of the Applicant upon return to Sri Lanka as a product of the application of the Immigrants and Emigrants Act (Number 31 of 2006) (Sri Lanka), a law of general application, not discriminatorily applied, and was not satisfied that any temporary period of detention on remand would amount to serious or significant harm.

5. No jurisdictional error attends the Tribunal decision and the application is dismissed with costs following the event.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 15 May 2015