MZADH v Minister for Immigration and Border Protection

[2015] FCA 887

FEDERAL COURT OF AUSTRALIA

MZADH v Minister for Immigration and Border Protection [2015] FCA 887

Citation:	MZADH v Minister for Immigration and Border Protection [2015] FCA 887
Appeal from:	Application for extension of time: MZADH v Minister for Immigration and Border Protection & Anor [2015] FCCA 1261
Parties:	MZADH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	VID 316 of 2015
Judge:	COLLIER J
Date of judgment:	19 August 2015
Cases cited:	Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Date of hearing:	19 August 2015
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	31
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First and Second Respondents:	Mr D Brown of the Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 316 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZADH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	19 AUGUST 2015
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for extension of time filed 17 June 2015 be allowed.

2.The substantive appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 316 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

MZADH
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	19 AUGUST 2015
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This morning in Court the appellant sought an application for extension of time to file a notice of appeal against the Minister for Immigration and Border Protection (the Minister) and the Refugee Review Tribunal (the Tribunal) (now known as the Administrative Appeals Tribunal). The draft notice of appeal, also before the Court, appeals from all of the orders of the Federal Circuit Court of Australia given on 15 May 2015. The Minister did not oppose the application for the extension of time to file the notice of appeal, and I made an order accordingly.

2. The appellant then indicated that he was prepared to continue with the hearing of his appeal. Mr Brown for the Minister directed my attention to previous directions of Registrar Josan in which the appellant had been directed to file submissions in contemplation of the extension of time being granted and the Court proceeding to hear the appeal. To that extent I am satisfied that the appellant was not taken by surprise at the prospect that the substantive appeal should proceed today.

   Substantive application

3. The appellant provided handwritten grounds of appeal in his affidavit filed 17 June 2015 filed in support of his application for an extension of time to file the appeal, and which correlate to the draft notice of appeal also filed in accordance with the Rules. The appellant makes the following claims:

   Grounds of Appeal

   1.        The there is jurisdictional error in the Federal Circuit Court Decision.

   2.The reasons provided by the second Respondent to the first Respondent in Support of the Second Respondent’s recommendation that the Appellant was not a person to whom Australia had protection obligations were neither logical not rational.

   3.Further grounds of appeal will be provided once I have legal representation and the review of the written reasons for the decision has been completed.

   (Errors in original.)

4. The appellant seeks the following orders:

   1.A declaration that the Refugee Review Tribunal was not made in accordance with law, by reason of the grounds of this application and further amendment.

   2.A declaration that, in recommending the First Respondent and the Appellant was not a person to whom Australia has protection obligations, the Second Respondent failed to observe the requirements of procedural fairness.

   3.        The first respondent pays the applicant’s cost.

   4.        Such further orders the Court deems fit.

   (Errors in original.)

5. The appellant has filed no written submissions. In Court this morning the appellant made the following oral submissions:

   ŸThere was an error in the process at the Tribunal hearing.

   ŸThe interpreter assisting him at the Tribunal hearing was a native of India and there were language communication difficulties between the appellant and the interpreter at that hearing. The appellant did not mention these difficulties at the Tribunal hearing because he was not asked about it, and the questioning of him at the Tribunal was harsh.

   ŸHe was not represented either in the Court below, and was hesitant as it was his first time in Court.

   Background

6. The appellant was born in Udappu, Puttalam District, which is in a North Western Province of Sri Lanka, on 8 November 1994. He is now 20 years old and 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.

7. The appellant applied to the Department of Immigration for a protection visa on 2 October 2012. The appellant’s claims that he left his country because of many personal and financial problems were summarised by the primary Judge in her decision of 15 May 2015 at [2], and included that:

   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.

8. A delegate for the Minister refused to grant the visa on 4 February 2013 on the basis that the appellant’s evidence regarding his beating by the army, the taking of his father’s fish, the enforcement to work at an army camp and the alleged restrictions imposed on worshipping as a Hindu were inconsistent, vague, implausible and not credible. Moreover, whilst the appellant gave credible evidence regarding greaseman attacks and white van abductions, based on the country information provided, the delegate was satisfied that these attacks did not occur in the appellant’s home village.

9. As a result, the delegate was not satisfied that the appellant had a well-founded fear of persecution in the reasonably foreseeable future due to his being a Tamil, a Hindu or a returned asylum seeker nor was the delegate satisfied the appellant would suffer a real risk of significant harm if he was returned to Sri Lanka.

10. The appellant lodged an application for review of the delegate’s decision with the Tribunal on 11 February 2013, the circumstances of which were summarised by the primary Judge as follows:

    3.… 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.

11. The Tribunal made a number of adverse credibility findings about the applicant’s evidence, which led it to conclude that he had exaggerated key parts to his claims and fabricated other claims of past harm. In summary, he was found to have given:

    ·inconsistent evidence regarding his being taken by the army to work after he left school;

    ·inconsistent evidence about the harm he suffered as a Hindu;

    ·exaggerated evidence about the effect on his family of the army taking fish from his father;

    ·inconsistent evidence about the reason for which his father was beaten by the army;

    ·evidence in a manner that appeared to have been rehearsed; and

    ·inconsistent evidence about the number of times he had been taken to work at the army camp.

12. The Tribunal concluded, in summary, that the applicant had fabricated claims in relation to the army and that he had manufactured a profile, which would make him appear to be at risk of potential harm from Sri Lankan authorities.

13. The Tribunal considered whether the applicant had a well-founded fear of persecution arising from his Tamil ethnicity, at [57] of its decision:

    The Tribunal considers the situation for Tamils in Sri Lanka has changed significantly since the cessation of the civil war between the Sri Lankan government and LTTE in 2009. However the Tribunal accepts on basis of the country information provided by the migration agent that Tamils in Sri Lanka have historically faced a degree of harassment and discrimination on account of their ethnicity and may continue to do so, such as difficulties in accessing employment and disproportionate monitoring by security forces.

14. However, by having regard to the 2012 UNHCR Eligibility Guidelines, the Tribunal concluded that the applicant did not fall into any categories at risk, at [59] of its decision:

    … in light of the position of the UHNCR that protection should no longer be presumed as being needed for Sri Lankans of Tamil ethnicity, the Tribunal finds that Tamils do not face a real chance of suffering serious harm solely on account of their ethnicity from the Sri Lankan authorities.

15. This conclusion was also made by the Tribunal in conjunction with its rejection of the applicant’s account of having suffered past harm and prevention of attending the Temple as a Hindu on credibility grounds. Moreover, the Tribunal rejected the applicant’s fear of “greasemen” attacks on the basis of country information that the attacks had ceased; and that there was no real chance that the applicant would be harmed as a returned failed asylum seeker who had departed Sri Lanka illegally. Rather, the law of general application would apply for the applicant breaching Sri Lankan immigration and emigration laws; and such breach does not amount to persecution.

16. Consequently, the Tribunal concluded that there were no substantial grounds for believing, as a necessary and foreseeable consequence, that there was a real risk that the applicant would suffer significant harm if he were removed from Australia.

    Appeal to the Federal Circuit Court

17. The appellant filed an application for judicial review of the decision of the Tribunal on 28 April 2014 and was self-represented at a final hearing before the primary Judge on 23 April 2015.

18. The application before the Federal Circuit Court nominated two grounds of judicial review:

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

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

    (Errors in original.)

19. Neither ground was particularised and the appellant did not provide written submissions.

20. As to the first ground of review, her Honour held that:

    26.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 its by its rescheduling of a second hearing, following the applicant’s failure to attend the first. The Tribunal … allow(ed) a … adjournment for the Applicant to confer with his migration agent … (and) also invited post hearing submissions from the Applicant’s legal representative. The Tribunal provided a very detailed and considered Decision Record and there is nothing to suggest it failed to fulfil its statutory obligations …

21. As to the second ground of review, her Honour held that:

    27.… The Tribunal correctly set out the law to be applied to the matter before it … pursuant to s36(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.

22. In concluding that no jurisdictional error attended the Tribunal decision, her Honour concluded that:

    28.The Tribunal’s credibility findings … based upon facts having logical and probative weight, (see SZSHV v Minister for Immigration and Border Protection [2014] FCA 323 at [31]) and were findings of excellence, (see Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609 at [65], which are not open to judicial review.

    (Full citations added.)

    29.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 …

23. The application was dismissed with costs.

    Consideration

24. In substance, the draft notice of appeal identifies a single ground of appeal: that it was neither logical nor rational for the Tribunal to conclude that the applicant was not owed protection obligations.

25. The orders sought by the draft notice of appeal include a declaration that the Tribunal “failed to observe the requirement of procedural fairness”.

26. On the issue of irrationality or illogicality, a majority of the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 determined that an administrative decision reached by a process of reasoning claimed to be irrational or illogical would only be affected by jurisdictional error where “no rational or logical decision-maker could arrive [at the decision] on the same evidence”.

27. The second respondent submits that the applicant has not identified any reasoning by the Tribunal that it was irrational or illogical, and that the applicant’s ground of appeal is no more than a vehicle for attempting to contest adverse findings made by the Tribunal which it was empowered to make within the scope of the jurisdiction conferred upon it.

28. In my view it cannot be said that the decision of the Tribunal was irrational or illogical in the sense explained in SZMDS, or that the Court below erred in refusing to quash the Tribunal’s decision for that reason.

29. As to the issue of procedural fairness I note that the primary Judge observed at [26]:

    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 its by its rescheduling of a second hearing, following the applicant’s failure to attend the first. The Tribunal … allow(ed) a … adjournment for the Applicant to confer with his migration agent … (and) also invited post hearing submissions from the Applicant’s legal representative. The Tribunal provided a very detailed and considered Decision Record and there is nothing to suggest it failed to fulfil its statutory obligations …

30. Notwithstanding the appellant’s submissions concerning his interpreter I am not persuaded that he was denied procedural fairness at the Tribunal hearing, particularly as he was apparently accompanied by his own representatives to whom he could have complained had there been any concerns with the accuracy of the interpretive services provided.

31. In my view the appeal should be dismissed, with costs following the event.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Associate:

Dated:        19 August 2015