MZAEL v Minister for Immigration

[2015] FCCA 370

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAEL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 370

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision not to grant Protection (Class XA) Visa – complaint that Tribunal failed to access integers of applicant’s claim – complaint of there being no evidence to support Tribunal’s findings – complaint that Tribunal failed to engage in evaluative assessment of the evidence – claim that Tribunal denied procedural fairness.

Legislation:

Migration Act 1958 (Cth)

Htun v Minister for Immigration and Multicultural Affairs [2001] 194 ALR 244
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZKTI & Anor [2009] HCA 30
NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263
SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63

Applicant: MZAEL

First Respondent: MNISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 986 of 2014

Judgment of: Judge McGuire

Hearing date: 18 February 2015

Date of Last Submission: 18 February 2015

Delivered at: Melbourne

Delivered on: 25 March 2015

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the first Respondent: Mr Rogers

Solicitors for the first Respondent: Australian Government Solicitors

ORDERS

1. The application for judicial review filed 26 May 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 986 of 2014

MZAEL

Applicant

And

MNISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a judicial review of the determination of the Refugee Review Tribunal (“the Tribunal”) made 28 April 2014, affirming a decision of the Minister's delegate to refuse a Protection (Class XA) Visa. 

2. The application before this court was lodged on 26 May 2014.  Orders and directions were made by the Registrar on 2 September 2014.  Written submissions were provided by the first respondent pursuant to the Registrar’s timetable.  When the matter was called on before me the applicant handed to the Court a document titled “Applicant’s outline of submissions”.

3. The applicant appears in person.  He was assisted by an interpreter.  I established at the start of the hearing that the applicant and the interpreter shared a mutual language understanding.

4. The application raises two grounds of complaint as follows:

   i)The Tribunal has failed to assess his integer claim of being a Muslim practicing Islam as his faith and, thereby, fell into jurisdictional error.

   ii)There is no evidence to support the Tribunal’s finding that the applicant’s profile was UNP, was vague and generalised and the Tribunal failed to consider his claim cumulatively and, thereby, fell into jurisdictional error.

5. The applicant’s written submissions handed to the Court raise three further grounds of complaint.  Counsel for the first respondent had only recently been provided with the applicant’s document but was able to proceed without the need for adjournment.  There are, therefore, now five grounds of complaint before the Court.  The later three grounds are:

   i)The Tribunal failed to undertake its task of review pursuant to s414 of the Migration Act as it made findings without engaging in any evaluative assessment of the evidence.

   ii)The Tribunal breached s425 of the Migration Act and/or denied the applicant procedural fairness.

   iii)The Tribunal failed to consider an integer of the applicant’s claims.

Background

1. The applicant is from Sri Lanka.  He is of Tamil ethnicity.  He practices the Islamic religion.

2. The applicant arrived in Australia on either 25 or 27 May 2011 holding a Transit Offshore TX-771 visa.

3. On 3 June 2011 the applicant applied for a protection visa.

4. On 21 March 2012 the Minister’s delegate refused the application finding that the applicant did not meet the criteria for a protection visa.

5. On 29 March 2012 the applicant applied to the Tribunal for a re-hearing on the merits of his application.  He was represented by a migration agent at that hearing which took place on 19 February 2013.

6. The Tribunal’s decision confirming that of the delegate was handed down on 28 April 2014.

7. The applicant grounded his application before the Tribunal on the following bases:

   a)That he had a fear of death at the hands of members of the supporters of the ruling political party in Sri Lanka by reason of:

   i)That he is a Tamil-speaking Muslim;

   ii)That he was an active member of the opposition United National Party (UNP), and his family are supporters of that party, as are most Muslims from his home region of Kandy;

   iii)That there has been violence between members and supporters of the two major political groups and that the applicant has been a particular target and the subject of threats and victimisation;

   iv)That the applicant had cause to go into hiding in Colombo before fleeing to Nauru in January 2011; and

   v)That on two occasions the applicant was taken into police custody due to his political activism.

   b)Written submissions of 2 February 2013 were provided to the Tribunal arguing on behalf of the applicant that his return to Sri Lanka would cause:

   i)The applicant to be persecuted by Singhalese majority by reason of race and religion as a Tamil Muslim;

   ii)That the applicant will be persecuted or harmed by reason of his imputed political opinion, evidenced by his previous arrests and threats made to him; and

   iii)That the applicant will be targeted by reason of his membership of the particular social group of failed asylum seekers and returnees to Sri Lanka.

   c)The applicant’s argument was supported by a report from a social worker noting the applicant to be undergoing counselling for anxiety, depression and “flashbacks” from past trauma.

   d)A further post-hearing written submission was made to the Tribunal by the applicant’s lawyers on 14 March 2013 in respect of the following:

   i)Providing originals of copied documents previously given to the Tribunal and where the Tribunal had raised doubt as to the authenticity of those documents;

   ii)Issues of credibility raised by the Tribunal based on the applicant not previously disclosing his alleged arrests in his statements of claim; and

   iii)Further submissions in respect of the applicant’s alleged fear of persecution based on race, religion and imputed political opinion.

   e)On 8 April 2013 the applicant provided the Tribunal a psychiatric report and assessment which he relied upon in respect of his credibility, the genuineness of his claim, and the risk of harm to him if returned to Sri Lanka

The Tribunal’s Reasons

1. The Tribunal found that the applicant did not have a well-founded fear of persecution and hence did not meet the criteria of s36(2)(a) of the Migration Act1958 (“the Act”) as a person to whom Australia owed protection under the Refugees Convention [51].

2. Further, the Tribunal considered whether the applicant met the complementary protection requirements pursuant to s36(2)(aa) in respect of the principles of “real risk” pursuant to the decision of the Full Court in MIAC v SZQRB[1].

   [1] [2013] FCAFC 33

3. The Tribunal was not satisfied that there were substantial grounds for believing that the applicant would face a real risk of suffering significant harm as a necessary and foreseeable consequence of his removal from Australia to Sri Lanka.

4. The Tribunal found against the applicant on a number of matters of credit in concluding that he did not have a well-founded fear of the persecution of the Sri Lanka.  Specifically, the Tribunal found:

   i)That it did not accept as credible the applicant’s role, profile and involvement in UNP, considering his evidence to be vague and generalised [22];

   ii)Whilst accepting that the applicant “broadly supports” the UNP’s aims [21], the Tribunal, viewing the applicant’s evidence as inconsistent and/or implausible [20], was not satisfied as to the applicant’s evidence in respect of him being personally attacked, or his parents’ property being destroyed, or his family members relocating away from Kandy out of fear;

   iii)The Tribunal did not accept that the applicant fled Sri Lanka after being summonsed on bogus criminal charges and, hence, remains in breach of the summons [20];

   iv)At [26] the Tribunal noted that the applicant had not mentioned in his written statement to the Department that he had been detained by police, or had escaped police custody, or that he had faced a summons relating to his UNP activities;

   v)At [30] the Tribunal was not satisfied as to the applicant’s evidence as to allegedly escaping from police custody but being able to leave Sri Lanka by a public airport;

   vi)At [38] the Tribunal did not accept that the country information reports supported the applicant’s contention that he would face serious harm by reason of being a Tamil-speaking Muslim in Kandy (or in Sri Lanka);

   vii)At [34] and [35] the Tribunal did not accept that the applicant’s profile as a non-active UNP supporter would expose him to serious harm, although noting credible country information of examples of the Sri Lankan government containing dissent through intimidation and mistreatment of high-profile UNP members;

   viii)At [38] the Tribunal noted argument and country information reports before it and provided by the applicant’s representative pertaining to the applicant facing serious harm by reason of him being a Tamil-speaking Muslim;

   ix)At [46] the Tribunal considered the applicant’s cumulative circumstances as a young male, Tamil-speaking Muslim (non-active) UNP supporter.  The Tribunal noted the applicant having departed Sri Lanka lawfully.  The Tribunal found that the applicant did not face a real chance of serious harm as a returned failed asylum seeker or for any of the cumulative reasons argued.

Ground 1 - That the Tribunal failed to assess an integer of the applicant’s claim of being a Muslim, practicing Islam as his faith, and thereby fell into jurisdictional error.

1. It is well established that the obligation of the Tribunal is to engage and consciously consider all of the claims of an applicant, both those made explicitly or those which are apparent on the material before the Tribunal.  In Htun v Minister for Immigration and Multicultural Affairs[2] The Full Court said:

   The requirement to review the decision under s414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all of the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration…it is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act….make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.

   [2] [2001] 194 ALR 244 at [42]

2. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs[3] The Full Court said in simple terms:

   Where the Tribunal fails to make a finding on a substantial, clearly articulated argument relying upon established facts, that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. 

   [3] [2004] FCAFC 263 at [55].

3. The applicant argues that the Tribunal here did not consider his claim of being a Muslim who practices his Islamic religion.

4. At [18], the Tribunal member stated:

   I accept the applicant’s identity and nationality and usual residency in Kandy are as claimed.

5. The Tribunal clearly engaged in consideration of the applicant’s claim of risk of harm to him as a Tamil Muslim in Kandy.  At [36] the Tribunal notes country information in respect of Tamil Muslims in Sri Lanka and specifically in respect of them being a religious and ethnic minority.

6. Paragraphs [36] – [41] specifically, and in detail, demonstrate the Tribunal engaging in the arguments mounted by and on behalf of the applicant in respect of his religion and ethnicity.

7. The Tribunal’s conclusions are evident at [38] and [39], where the member finds:

   I do not accept that the country information reports provided by her soundly support the view that Tamil-speaking Muslims in Kandy (or Sri Lanka generally) face serious harm by reason of their religion and language, in other than isolated instances.  Nor do I accept that the applicant’s profile as a Tamil-speaking Muslim in Kandy means that the credibly reported instances of serious harm to people of Tamil ethnicity – particularly in the north and east, and specific to post-conflict dynamics regarding Tamils and LTTE suspects in particular – can be automatically conflated with the experience of Tamil speakers and/or extrapolated to the applicant personally.

   Further, I do not find the country information provided offers a sound basis for finding that Muslims or Tamil-speaking Muslims in Kandy face more than isolated examples of harassment or harm or serious harm by reason of their religion and/or actual race and/or imputed Tamil race deriving from speaking Tamil.

8. This ground of complaint must fail given that the integer has clearly been addressed and considered by the Tribunal.

Ground 2 - There is no evidence to support the Tribunal’s finding that the applicant’s profile with UNP was vague and generalised and the Tribunal failed to consider his claim cumulatively and thereby fell into jurisdictional error

1. The Tribunal considered the applicant’s membership and profile with UNP between [21] and [35]. 

2. At [22] the Tribunal finds:

   I found the applicant’s overall evidence about his stated UNP role and activities to be vague and generalised. 

3. And at [25]:

   Further, I find core parts of the applicant’s account of his and his family’s circumstances from around the 2010 election are internally inconsistent and/or implausible, and accordingly I do not accept the applicant was harassed, threatened, beaten or harmed by anti-UNP thugs at any time, or that threats or harm extended to his family members.

4. It is the task of a Tribunal to make findings of fact and credit.  It is not argued here that such findings, as they were, were unreasonable or illogical.  It is argued, simply, that there was no evidence before the Tribunal to ground such findings.  To the contrary, at [22] the Tribunal notes that the member questioned the applicant in respect of  the detail, nature and scope of his stated UNP involvement and:

   …found the applicant’s account of the UNP policies and what it offered the local community was basic and not compatible with the knowledge that might be reasonably expected of someone who canvassed to the party or advocated its ideas…

   …he offered vague descriptions of broad patterns of activities – for example, he repeatedly described his role with phrases such as “going to different places on behalf of the party” and “doing whatever the party asked him to do” and “doing whatever the party required”.

5. Specifically, and also at [22] the Tribunal member notes:

   When I indicated my impression that the evidence on the applicant’s UNP involvement seemed very general, and invited him to give more specific details about his activities, I found his evidence in response remained vague and undetailed and, therefore, unpersuasive.

6. At [23] the Tribunal notes the applicant’s interpreter having difficulty because of the applicant’s use of “quite generic terms”.

7. I am satisfied that the Tribunal properly engaged in its role to assess credibility and did so on the evidence given and adduced by the applicant.  Hence, I am satisfied that the Tribunal’s findings were open to it on the material set out in its reasons.  It follows that there is no merit to ground 2 of the complaint.

Ground 3 - The Tribunal failed to undertake its task of review pursuant to s414 of the Migration Act as it made findings without engaging in any evaluative assessment of the evidence

1. The applicant’s written submissions particularised this ground of complaint in respect of the psychiatric report provided on the applicant’s behalf.  The applicant argues that the Tribunal’s reasons disclose “neither consciousness nor consideration” of the significant material before it and it cannot be inferred that the Tribunal formed a requisite state of satisfaction where such reasons do not disclose an evaluation of the claims before it.[4]

   [4] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114

2. The psychiatric report was clearly placed before the Tribunal after the hearing and is set out at [CB 135-138].  The report is dated is 5 April 2013 and prepared by Associate Professor Suresh Sundram.  In the third last paragraph of that report, Professor Sundram says:

   I am familiar with the mental health services in Sri Lanka and know that specialists in post-traumatic stress disorder are only in Colombo and are not accessible to the general population without considerable cost.  There are no psychotherapy services in Sri Lanka and services in the Kandy district are rudimentary for post-traumatic stress disorder.

3. It is this issue in particular of which the applicant complains as not being evaluated by the Tribunal.  Nevertheless, at [49] of its reasons the Tribunal says:

   Regardless, I have considered the matter further based on the post-hearing third-party assertions of the applicant’s psychiatrist about the availability, location and cost of mental health services in Sri Lanka.  Even accepting the psychiatrist’s assessment of the applicant’s “major depressive disorder of moderate severity requiring specialist treatment”, I do not accept that the cumulative evidence and material advanced offer any sound basis for finding that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, in Sri Lanka deriving from his mental health.

4. The Tribunal is the determiner of fact.  The task for the Tribunal in this matter was one of whether it was satisfied that the criteria for the protection visa were met.  It is not for this Court to enter into yet another hearing on the merits.

5. It is clear that the Tribunal engaged in the argument put by the applicant albeit after the hearing.  Also at [49] the Tribunal notes:

   At no stage up to or during the hearing (including in extensive evidence and submissions and including the representative’s post-hearing letter accompanying the psychiatrist’s report) did the applicant or representative advance claims or arguments that the applicant is concerned about, or faces, serious harm in Sri Lanka deriving from his mental health.  I find this very strongly suggestive that he has no subjective fear of persecution deriving from his mental health if he returns to Sri Lanka.

6. Nevertheless, and despite that preamble, the Tribunal continues at [49] confirming that it did consider the further matter raised in the post-hearing psychiatric report.

7. Further and earlier in its reasons at [32] the Tribunal specifically addresses this issue as follows:

   The applicant’s psychiatrist professed knowledge of mental health treatment in Sri Lanka and expressed the view that the applicant would not receive adequate mental health treatment if returned, whereas his symptoms would resolve if he were granted protection to remain in Australia.  Neither the applicant nor representative, in their detailed evidence and arguments, advanced any claim regarding the applicant’s mental health if returned to Sri Lanka, and nothing before me addresses this matter.

   I find no sound basis for finding the applicant will face harm in Kandy deriving from the symptoms diagnosed by the respective authors – including any denial of treatment (9.42.37) for any of the convention-based reasons advanced, now or in the reasonably foreseeable future.  The post-hearing psychiatrist’s report appears to record a number of new self-reported circumstances.  These were not advanced in any way in the course of the application or review process, and I do not accept that these are the applicant’s actual circumstances, as they were reported post-hearing to a third-party inconsistently with his account at the hearing.

1. I am of the view that the Tribunal both engaged and addressed the issue complained of by the applicant.  I am satisfied that it reached conclusions reasonably open to it as the determiner of fact.  As such, I find no merit in the third ground of complaint.

Ground 4 – That the Tribunal breached s425 of the Migration Act and/or denied the applicant procedural fairness

1. The applicant’s complaint rests on the chronology of the hearing taking place on 19 February 2013 but with the psychiatric report dated 5 April 2013 obviously not provided until later.  The Tribunal made its determination on 28 April 2014 being more than a year after the provision of the psychiatric report.

2. The applicant complains that the Tribunal did not raise the issues referred to in the report in respect of his mental health or access to mental health services with him and did not give him an opportunity to respond to this information.[5]

   [5] SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63

3. S422B of the Act provides that Division 4 of the Act is an exhaustive statement of the rule of natural justice or procedural fairness. The issue here is whether the Tribunal complied with s425 which states under the heading “Tribunal must invite applicant to appear”:

   (i)   The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (ii)  Subsection (i) does not apply if:

   (a)The Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   (b)The applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)Subsection 424C(1) or (2) applies to the applicant.

4. The chronology is clear that the psychiatric report was provided post the hearing attended by the applicant.  It is clear that the applicant was not further invited to make submissions before the Tribunal.  As mentioned above, the issues raised in the psychiatric report were considered and evaluated by the Tribunal.

5. Counsel for the first respondent argues that there was no requirement to further invite the applicant before the Tribunal as the material in the psychiatric report is “additional” material rather than “new” material.  No such requirement is necessary in respect of additional material. Counsel refers me to the decision of the High Court in Minister for Immigration and Citizenship v SZKTI & Anor[6], where their Honours at [51] state:

   Whether an issue must be raised with an applicant for the purposes of a further hearing under s425(1) will depend on the circumstances of each case.  Matters may arise requiring an invitation to a further hearing.  However, that is not the case in the present matter.  Here Mr Cheah’s evidence was additional evidence about an extant issue;  it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing.

   [6] [2009] HCA 30

6. The question here therefore is whether a further invitation was required to be rendered to the applicant pursuant to s425 of the Act on the basis of the material provided to the Tribunal post the hearing of 19 February 2013?

7. The applicant had been invited to and attended the hearing by which time the submissions [CB 75] were before the Tribunal. Page 9 of those submissions references an enclosed report from a Counsellor addressing the applicant’s mental health concerns originally attributed to previous trauma and violence. The actual Counsellor’s report appears at [CB121] and puts the Counsellor’s opinion in reference to the applicant’s claim:

It is my professional opinion that the fear and trauma (X) has experienced in his home county has had a serious impact on his psychological wellbeing. Apart from my grave concerns for (X)’s safety, I have genuine concerns for his mental health and wellbeing were he to be returned to Sri Lanka.

1. All of this material was provided to the Tribunal by facsimile on 15 February 2013 being some four days prior to the hearing attended by the applicant. The Psychiatrist’s report provided later does not, in my view, raise any new issues. Rather, it is simply additional evidence in respect of an issue already before the Tribunal. The psychiatric report sets out the applicant’s reported history [136] consistent with that provided to the Tribunal. It references [137] “symptoms of a depressive disorder…” “…recounted recurrent memories and thoughts” and “…episodes of recurrent intrusive memories of past assaults that occurred simultaneously”. This is not new material over and above that provided in the counselling report. The psychiatric report goes on to mention the services available in Sri Lanka at [138]. Again, I consider this to be material additional to the issue already raised before the Tribunal rather than a new issue. Consequently, I am not satisfied s425 of the Act is activated given the authority of SZKTI (supra).

2. In any event the material or information at issue was provided to the Tribunal by the applicant himself and that it seems, therefore, that s424A(3)(b) would operate so as to excuse the Tribunal from any obligation to invite the applicant to comment or respond. S424A(1) states:

   (1) Subject to Subsections (2A) and (3), the Tribunal must:

   (a) give the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) Invite the applicant to comment on or respond to it. (my emphasis). …

   (3) This section does not apply to information:

   (a) that is not specifically about the applicant of another person and is just about a class of persons of which the applicant or other person is a member; or

   (b) that the applicant gave for the purpose of the application for review; or …

3. Consequently, I find no merit in this ground of complaint.

Ground 5 – That the Tribunal committed jurisdictional error by failing to consider an integer of the applicant’s claims

1. The applicant particularises this complaint as the Tribunal failing to consider his claim that he would have difficulty subsisting in Sri Lanka without access to medical treatment and support and consequently be placed at risk of harm. 

2. The Tribunal’s reasons at [32] and [49], as set out above, clearly show that the Tribunal did consider the applicant’s claim in respect of his mental health and the availability and practical aspects of mental health services in Sri Lanka.

3. In its reasons at [49] the Tribunal specifically references:

   …the availability, location and cost of mental health services in Sri Lanka.

4. [32] of the Tribunal’s reasons specifically address the psychiatrist’s report and references his knowledge of mental health treatment in Sri Lanka, and the Tribunal goes on to make a finding in that paragraph:

   I find no sound basis for finding the applicant will face harm in Kandy deriving from the symptoms diagnosed by the respective authors – including any denial of treatment for any of the convention-based reasons advanced, now or in the reasonably foreseeable future.

5. It is clear from the above that the Tribunal did acknowledge the relevant evidence before it and did consciously consider that evidence.  The Tribunal is the determiner of facts.  There is no merit to the ground of complaint.

Conclusion

1. There being no merit to any of the five grounds of complaint made by the applicant, the application for judicial review is dismissed with an order for costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  25 March 2015