MZAEJ v Minister for Immigration
[2015] FCCA 567
•26 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAEJ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 567 |
| Catchwords: MIGRATION – Refugee Review Tribunal – application for adjournment – standard of interpretation – application for merits review. |
| Legislation: Immigrants and Emigrants Act No 31 of 2006 (Sri Lanka) |
| WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | MZAEJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 963 of 2014 |
| Judgment of: | Judge Riley |
| Hearing date: | 26 February 2015 |
| Date of Last Submission: | 26 February 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 26 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Solicitors for the Applicant: | The applicant was not represented |
| Advocate for the First Respondent: | Maria Ngo |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The applicant’s oral application for an adjournment is refused.
The application filed on 21 May 2014 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 963 of 2014
| MZAEJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is, firstly, an application for an adjournment of an application to review a decision of the Refugee Review Tribunal. The adjournment application was made by the applicant and is opposed by the first respondent. The substantive application was filed without the benefit of legal assistance.
The applicant told the court today that he is able to get legal assistance through the Asylum Seeker Resource Centre. He told the court that he did not have any document from the Asylum Seeker Resource Centre to say that they would act for him. He initially said that the Asylum Seeker Resource Centre had said that it would definitely represent him in this court.
It was put to the applicant that if the Asylum Seeker Resource Centre had said it would definitely act for him, they would have written to the first respondent and the court asking for an adjournment. The applicant then said that the Asylum Seeker Resource Centre said it needed at least three months to process his application. He later said that the Asylum Seeker Resource Centre was assessing whether it would be able to act for him.
The applicant also said that he first approached the Asylum Seeker Resource Centre in January 2015. The application was filed on
21 May 2014. On 29 May 2014, in accordance with its usual practice, the Australian Government Solicitor wrote to the applicant, advising him that legal assistance could be obtained from Victoria Legal Aid, the Asylum Seeker Resource Centre and the Refugee and Immigration Legal Centre, and gave contact details.
A directions hearing was held on 20 August 2014, which the applicant attended. On that date, the applicant was ordered to file and serve any amended application and written submissions by 20 January 2015, and the final hearing was listed for 26 February 2015.
In all the circumstances, it does not appear to me that the Asylum Seeker Resource Centre has given any indication to the applicant that it will definitely represent him in this court. At best, the applicant’s application is at a preliminary stage of assessment. If the Asylum Seeker Resource Centre had any present intention of representing the applicant, they would have written to the first respondent and the court seeking an adjournment.
In the absence of any such communication, it seems to me that there is little realistic prospect of the applicant being represented by the Asylum Seeker Resource Centre in the foreseeable future. The applicant has had ample time since filing his application on 21 May 2014 to seek the assistance of the Asylum Seeker Resource Centre.
In all the circumstances, it does not seem to me to be proper to grant an adjournment in this case.
The substantive application is an application to review a decision of the Refugee Review Tribunal. The tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant’s claims were contained in a statement dated 21 September 2012. He said that:
a)he was a Tamil;
b)his family moved from their home village in the North West Province to the Northern Province before the applicant was born;
c)his family was looking for more favourable fishing conditions;
d)after the applicant was born, his family returned to their village in the North West Province but were unable to register there due to the war;
e)they were considered to be displaced refugees until they were able to be registered in 2010 after the war ended;
f)his family were discriminated against by the authorities;
g)the Sinhalese perceive all Tamils to be LTTE;
h)
Tamils are targeted by the authorities, abducted and killed
extra judicially;
i)the authorities go into people’s homes and take them away for interrogation as LTTE suspects;
j)the applicant and his older brother were regularly targeted for interrogation by the authorities;
k)his older brother was beaten by the police;
l)in 2007, the applicant and his work colleagues were arrested, beaten and interrogated by the police for 16 hours on suspicion of being LTTE;
m)since the official end to the conflict the applicant has continued to be persecuted because of his ethnicity;
n)the authorities monitor his village in white vans and they often kidnap, arrest, detain, torture and kill Tamils for any wrong doing or LTTE involvement;
o)at the end of 2011, while the applicant was carrying passengers on his trishaw, he was followed by a white van;
p)in March 2012, a white van came to his house and four or five plain clothes men looked for the applicant;
q)they said his life was in danger and beat his father;
r)the applicant went into hiding;
s)the applicant believed he was being targeted as a young Tamil male originally from the north; and
t)he fears he will be detained, assaulted or killed.
The tribunal did not accept the applicant’s claims. The tribunal considered that the applicant had exaggerated key parts of his claims and fabricated claims of past harm. The tribunal said the applicant’s evidence contained inconsistencies, exaggerations and evasiveness. The tribunal accepted, as plausible, that the applicant and his brother were questioned, detained and assaulted by the Sri Lankan police in 2007.
The tribunal rejected the claims that the applicant had been mistreated since the civil war ended in 2009. The tribunal rejected the applicant’s claim to have been followed by a white van. The tribunal rejected the applicant’s claim that men had come to his home in March 2012 or January 2013. The tribunal accepted that the applicant was an internally displaced person, based on food stamps which the applicant had provided, and noted that a substantial percentage of the population of Sri Lanka were internally displaced persons during and after the civil war.
The tribunal considered that country information indicated that the situation for Tamils in Sri Lanka had changed significantly since the end of the civil war in 2009. The tribunal considered that Tamils continued to face harassment and discrimination on the basis of their ethnicity. The tribunal did not consider that such harassment and discrimination amounted to serious harm. The tribunal did not accept that the applicant faced a real risk of serious harm, based on:
a)his race;
b)his gender;
c)being from the Northern Province;
d)being an internally displaced person;
e)his membership of any particular social group;
f)his political opinion; or
g)for any other Convention reason.
The tribunal also rejected a claim raised at the second hearing in relation to Grease Men. The tribunal considered that there were no recent reports of such attacks in the applicant’s home village or elsewhere in Sri Lanka. The tribunal did not accept that there was more than a remote chance of the applicant befalling harm at the hands of Grease Men in the future.
The tribunal also considered whether the applicant faced harm as a returned failed asylum seeker. The tribunal considered that the applicant would not face a real risk of serious harm on the basis of being a failed asylum seeking. The tribunal did not accept that the applicant would be imputed with an anti-Government political opinion as a result of being a returned failed asylum seeker.
The tribunal also considered whether the applicant faced serious harm arising from his illegal departure from Sri Lanka. The tribunal found that the applicant would be detained for questioning and checks upon his return to Sri Lanka. The tribunal considered that the applicant was likely to be released shortly after being detained. The tribunal did not accept that short term detention of that nature amounted to serious harm. Alternatively, the tribunal also found that the Immigrants and Emigrants Act No 31 of 2006 (Sri Lanka)(“IEA”) was a law of general application and was not applied or enforced in a discriminatory way.
The tribunal also considered the complementary protection provisions. The tribunal did not consider that any harassment or discrimination that the applicant might experience on return would amount to significant harm.
The tribunal concluded that the applicant was not entitled to a protection visa.
The first ground of application in the application filed on 21 May 2014 is:
The Refugee Review Tribunal did not afford me procedural fairness.
That ground was not particularised in the application. The applicant was not represented and did not file an outline of submissions. However, the applicant addressed this ground in oral submissions before the court. The applicant said that he had difficulties with the interpreter. He said that the interpreter was an Indian Tamil whereas he is a Sri Lankan Tamil. He said that the interpreter did not know the Sri Lankan dialect. The applicant did not provide any transcript or expert evidence about errors in interpretation.
The applicant was asked if he could give any examples of errors in interpretation. He said that he told the tribunal that he was arrested and beaten, but the interpreter communicated very little. The applicant told the court that the tribunal asked him if he was beaten. The applicant told the court that he then told the tribunal that he had been beaten. The tribunal clearly clarified the applicant’s evidence with him.
It recorded in its reasons that the applicant claimed to have been beaten.
The applicant was asked to provide the court with some other examples. He said the main error was the one just described. It seems to me that if there was any error in interpretation in relation to that point, it was clarified during the hearing by the tribunal and did not result in the applicant’s claims not being adequately conveyed to the tribunal.
It is also noted that at paragraph 6 of the tribunal’s decision, the tribunal noted that there were two hearings. At paragraph 7 of its reasons, the tribunal noted that the applicant was represented by a migration agent. The migration agent filed written submissions following the second hearing. There was no mention in that written submission of any difficulty with interpretation.
In paragraph 13 of its reasons for decision, the tribunal said the following:
On some occasions during the hearing, the interpreters indicated some difficulty understanding the applicant at both hearings and on other occasions during the first hearing, the Tribunal did not hear clearly the interpreter. On each of those occasions, the Tribunal clarified the applicant’s evidence. The Tribunal is satisfied the standard of interpreting at the hearings was reasonable. The Tribunal considers the applicant was able to communicate effectively, understood the Tribunal proceedings, and participated in a meaningful way.
In the absence of any concrete evidence in the nature of expert evidence of errors in interpretation, I am not persuaded that there was any significant difficulty with the standard of interpretation.
The applicant said to the court that he wanted someone to listen to the recording of the tribunal hearings to see if the interpretation had reached a proper standard. It would appear that the applicant wants the Minister to fund that exercise, in circumstances where the tribunal found that the interpretation was reasonable. The tribunal said it had clarified areas when the communication appeared to be inadequate. In circumstances where the applicant’s own statement to the court was that the tribunal had clarified the issue of him being beaten, I do not consider that it would be appropriate to require the Minister to fund the necessary expert to listen to the recording of the tribunal hearings.
The applicant also told the court that, when the second hearing occurred, he was half an hour late. He said he was on Brisbane time, and the hearing was in Sydney. He said that the tribunal seemed annoyed and he was put under pressure. The tribunal described the fact of there being two hearings at paragraph 6 of its reasons. The tribunal said that the applicant was told the incorrect hearing time by his migration agent, and arrived more than one hour after the scheduled start time.
The result was that, after a period of time, the hearing room ceased to be available and the tribunal hearing had to be adjourned for about one week. There is nothing before the court to indicate that the tribunal was annoyed to such an extent that it detracted from the fairness of the hearing.
The applicant also told the court today that he did have a well-founded fear of persecution. He said that the tribunal had said that it was now safe in Sri Lanka, but that was not true. In raising these issues, the applicant appears to be seeking merits review. The court is not able to make a reassessment of the facts of the case, but can only look for jurisdictional error.
The applicant also said that he was well prepared for his first hearing, but was not well prepared for his second hearing. He said that went against him. The applicant seemed to suggest that there was some jurisdictional error in the tribunal adjourning. However, it seems to have been entirely proper for the tribunal to adjourn in circumstances where the hearing room became unavailable because of the late start and a prior booking.
The applicant also said that he had given the tribunal some documents in Tamil. He said that the tribunal had said that it could not look at them, and that was unfair. The applicant took the court to the document at court book 99. He explained that it was a benefit coupon otherwise known as food stamps. The tribunal appears to have addressed this document at paragraph 34 of its reasons for decision. The tribunal there said:
At the first hearing the migration agent noted the applicant gave her untranslated documents in Tamil about his being an IDP. At the second hearing, she explained the documents were for food stamps, which did not appear relevant to his claims. The Tribunal noted the applicant was drawing a distinction his being an IDP was a contributing factor to his being targeted by the Sri Lankan authorities. The document may corroborate that he was an IDP, but it would leave it to the migration agent and the applicant to put the documents before the tribunal to consider further, it would accept a submission from the migration agent as to the content, without the need to translate them. The documents were not later provided to the Tribunal, so the Tribunal is unable to place any weight on them. (errors in original)
The tribunal made it clear that it would have accepted those documents without them being translated. However, the tribunal seems to have been expecting the migration agent to clarify the claim in relation to those documents, but the agent did not do so. In these circumstances, there does not appear to have been any jurisdictional error made by the tribunal in this regard.
The applicant also told the court that he had mentioned to the tribunal the suspicious vehicle following him, but the tribunal did not accept it. He said it truly happened. This again seems to be the applicant seeking impermissible merits review in this court.
Finally, the second ground in the application filed on 21 May 2014 is that the tribunal applied the wrong legal test. There are no particulars of this ground. I am unable to find anything in the tribunal’s reasons for decision which substantiates that claim.
I note that, in relation to the issue about the applicant being detained if he returns to Sri Lanka, the tribunal possibly committed the error identified in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947.
That decision is presently binding on this court, even though special leave to appeal to the High Court was granted in relation to it on 13 February 2015. However, the tribunal’s decision in relation to detention is sustained on the separate and independent ground that the IEA is a law of general application which is not applied in a discriminatory manner.
In all the circumstances, it does not appear to me that there is a jurisdictional error in the tribunal’s handling of this issue.
Consequently, the application must be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 13 March 2015
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