MZAFC v Minister for Immigration

[2016] FCCA 1337

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAFC v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1337

Catchwords:
MIGRATION – Application for judicial review – Tribunal concluding applicant not applicant not facing harm as claimed in Sri Lanka – grounds of application, even as amended in oral submissions, clearly constituting merits review – Tribunal’s decision open on the facts before it – no jurisdictional error shown – application dismissed.

Legislation:

Migration Act 1958, s.36(2)(aa)

Cases cited:
Selvadurai v MIEA & Anor (1994) 34 ALD 346

Applicant: MZAFC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1095 of 2014

Judgment of: Judge Burchardt

Hearing date: 15 April 2016

Date of Last Submission: 15 April 2016

Delivered at: Melbourne

Delivered on: 16 June 2016

REPRESENTATION

Counsel for the Applicant: Mr Sorensen

Solicitors for the Applicant: P L Siri Bandara

Counsel for the First Respondent: Mr Smyth

Solicitor for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be changed to ‘Administrative Appeals Tribunal’.

2. The Application filed 5 June 2014 is dismissed.

3. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1095 of 2014

MZAFC

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. This is an application for judicial review of a decision of the Refugee Review Tribunal dated 13 May 2013.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.

2. The applicant’s original grounds of application were superseded by an amended application filed 18 September 2015 by the applicant’s then legal representatives, who withdrew on the record shortly before the final hearing.  There were seven grounds of application in the amended application, and it should be noted that counsel for the applicant (briefed by a newly appointed firm of solicitors) effectively conceded that they were drawn in such broad terms as to be ineffectual.

3. That concession, in my view, was properly made. 

4. Because the arguments presented at trial took on a far more focused and refined character than the amended grounds of application, I propose to deal only with those grounds advanced by counsel at trial. 

5. For the reasons that follow, however, in my opinion, the applicant’s criticisms of the Tribunal’s decision are not made out and it follows that the application will be dismissed with costs. 

Materials in the Court Book and the Tribunal’s decision record

1. The applicant’s application for the Protection visa dated 20 February 2013 squarely raised persecution on the grounds of political involvement as a member of the United National Party (UNP).  He filed submissions prepared by an agent at Court Book “CB” 75-77, which set out the history of his involvement in UNP affairs and the alleged consequences to various members of the applicant’s family, as well as the applicant himself.  The submissions were accompanied by very substantial documentation from Sri Lanka.

2. That application was the subject of a decision by a delegate of the first respondent forwarded to the applicant on 2 September 2013 (CB184-207).  The delegate did not believe the applicant and paid no regard to the documentation from Sri Lanka because of the prevalence of forged documentation in Sri Lanka (CB200).  The delegate also took into consideration the fact that the applicant did not apply for a visa until 2013, although he arrived on a student visa in September 2008.  It should be noted that the applicant had provided an explanation for the delay in application, but the delegate did not accept it. 

3. The applicant applied for review before the Tribunal and his agent provided further submissions and material (CB231-265).  Inter alia, the submissions raised at CB233a criticism which in my view that in substance, could be taken to assert that the delegate’s blanket view the documentation from Sri Lanka was unreliable was inappropriate.

The Decision of the Tribunal

1. The Tribunal set out the application for review and relevant law at CB270-272.  No criticism has been made of those matters, and it should be noted that the Tribunal expressly referred at paragraph 19, CB272, to the requirement to take into consideration the policy guidelines prepared by the Department of Immigration (PAM3).

2. The Tribunal went on to consider claims and evidence at CB272-280 in considering the applicant’s claim under the Refugee Convention. 

3. The Tribunal accepted that the applicant and his family were connected to politics and particularly the UNP (paragraph 28, CB273).  The Tribunal examined in some detail the various matters asserted from time to time as to the particular involvement of the applicant’s father and uncle and other family members in the affairs of the UNP.  The Tribunal accepted that the applicant was a member of the UNP who had actively supported the party from 2006 when his father contested local elections (paragraph 31, CB273). 

4. The Tribunal did not, however, accept that the applicant was involved in the Presidential election in 2005 because the applicant’s evidence concentrated on his family’s activities rather than his own, and the fact that he was still at school.  This was a finding clearly open to the Tribunal on those materials. 

5. The Tribunal accepted that the applicant joined the UNP National Youth Front in 2008 and accepted, not without doubt, that he became the Vice Chairman of that body within five months (paragraph 33, CB274). 

6. The Tribunal also considered the letters of support the applicant had provided from various UNP politicians.  The Tribunal noted some inconsistencies in the dates set out in that material and concluded at paragraph 34 CB 274:

   “Given these discrepancies the Tribunal has some serious doubts about how well known his family is to the author of this letter.”

7. The Tribunal went on to consider the applicant’s father being taken into custody after the election in 1991, in 1996, in relation to a shooting incident (paragraph 35 CB 275-276).  The Tribunal found the applicant’s evidence vague and limited.  The Tribunal accepted, on the basis of the Court documents and newspaper articles submitted by the applicant, that the applicant’s father was indeed taken into custody, charged with attempted murder and ultimately found not guilty in 1999.  The Tribunal did not accept, however, on that information, that the case against the applicant’s father was false or politically motivated.

8. The Tribunal accepted that the applicant’s uncle was attacked by the JVP in 1988.  The Tribunal accepted that the uncle’s house was destroyed and that a cousin was shot and killed and the uncle’s elder son was shot and injured (paragraph 36 CB 275).

9. The Tribunal also traversed claims by the applicant that a number of his family members had been killed or injured in road accidents which the applicant contended had been as a result of their political opinion.  The Tribunal came to the conclusion that while this was most unfortunate, it did not accept that these incidents were specifically politically targeted. 

10. The Tribunal did not accept that the applicant’s father was the subject of regular threats of assassination.  The Tribunal, putting the matter shortly, was of the view that the applicant’s father had been in politics for a very long time without anything actually happening to him and concluded therefore that he was not of sufficient interest for such a threat ever to be likely to occur.  As the Tribunal said at paragraph 41 CB 276:

    “In addition to the case against the applicant’ s father in 1996 and the motor vehicle accident he was involved in twelve years later, the applicant claimed that his father had been subjected to threats throughout his political career, a period spanning before the applicant was born up until currently.  The Tribunal does not accept that over such a considerably lengthy period of time, the applicant’s father has been regularly subjected to threats of death, as the applicant claimed. While the Tribunal accepts that there may have been instances when the applicant’s father received threats, including death threats, such as during election campaigns, the Tribunal does not accept that over a period spanning more than twenty seven years at least, the applicant’s father has continuously or regularly been threatened as claimed by the applicant and his father in the statutory declaration that was submitted to the Tribunal. Taking into consideration the applicant father’s long standing association with the UNP and politics and the fact that over that period of time he was not physically harmed, the Tribunal does not accept that if the applicant’s father was of continuing interest because of his political opinion and activities, that he would simply be threatened over such an extended period of time and nothing further happened to him, particularly given his active participation in politics.  The Tribunal therefore places little weight on the statutory declaration provided by the applicant’s father, in which he stated that he claimed he and his family, including the applicant, had been receiving political threats continuously.”

11. The Tribunal then dealt with the applicant’s claims to have been the subject of death threats from 2006 onwards.  The Tribunal did not accept these assertions at all.  The Tribunal noted (paragraph 43 CB 276) that despite alleged regular threats to stop his activities, the applicant continued his association with the UNP, but nothing further happened to him.  The Tribunal found that if the applicant was of interest to opposition party members, including underworld figures, something would have happened to him over those years, particularly in 2008.  The Tribunal further did not accept that when the applicant returned to Sri Lanka in 2009 he received any threats as he claimed.  It did not accept that the applicant had immediately become involved in politics on this occasion, noting at paragraph 44 CB 277:

    “The Tribunal notes that the applicant made no mention before the hearing that he was politically active during this first visit, instead consistently claiming that the purpose of this trip was to visit his father who was due to undergo potentially dangerous surgery.  Further, the Tribunal finds it somewhat implausible that the applicant would address pocket meetings to talk about the current situation in the country when he had been absent since September 2008.  The Tribunal therefore does not accept that the applicant received threats maybe twice or thrice per week or sometimes a month, when he went back to Sri Lanka in March 2009.”

12. The Tribunal accepted that the applicant might have engaged in political activities in support of Sarath Fonseka when he returned to Sri Lanka the second time in December 2009, but did not accept that being asked by unidentified opposition supporters to stop his activities constituted serious harm, particularly when nothing happened when he continued with those activities (paragraph 45 CB 277).

13. While the Tribunal was prepared to accept that the applicant had attended a political meeting during his visit from December 2012 to January 2013, it did not accept that he has organised the meeting because he had only been in the country for a few days when the meeting was held on 28 December 2012 (paragraph 46 CB 277).  It also found implausible the applicant’s assertion of harm after that meeting.

14. The Tribunal analysed the sequelae to that meeting at paragraphs 47-50 and I note that at paragraph 51 the Tribunal placed little weight on the acknowledgement of complaint submitted to the police because of document fraud in Sri Lanka more generally.

15. The Tribunal observed at paragraph 52, CB 279:

    “The Tribunal also does not accept the extent of the applicant or his family’s problems in Sri Lanka as a result of their political opinion based on the fact the applicant returned to Sri Lanka on three occasions, the first time as soon as six months after he first departed, despite claiming in his protection visa application that he was forced to leave the country in September 2008 because of problems he allegedly experienced as a result of his political involvement and serious threats to his life. As the Tribunal put to the applicant in the hearing, his return to Sri Lanka on three occasions is not consistent with his claims he left there because he feared for his safety.  The Tribunal has had regard to the applicant’s response that the first time he went back was because of his father’s health problems, which occurred several months before the applicant first departed the country, the second time he went because General Fonseka was contesting the Presidential election and his cousin had also died, and the last time he thought he should visit because it had been a long time since he had been home and he did not believe anything would happen to him. However, the Tribunal finds the applicant’s frequent visits to Sri Lanka between 2009 and 2013 are not consistent with a subjective fear or harm and raises serious doubts about the genuineness of the applicant’s claims regarding the difficulties he and his family have experienced.”

16. The Tribunal also paid attention to the length of time it took for the applicant to make his application for the protection visa and referred to the decision of Heerey J in Selvadurai v MIEA & Anor (1994) 34 ALD 346 in this regard.

17. Against those findings, the Tribunal came to the conclusion that the applicant did not face a real chance of serious harm from either State or non-State agents now or in the reasonably foreseeable future on account of his political opinion or his membership of his family. 

18. The Tribunal went on to consider the applicant’s circumstances against the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958. Unsurprisingly, given the nature of the of the claims made and the Tribunal’s findings thereon, the Tribunal concluded that the applicant did not engage with the terms of s.36(2)(aa).

The Submissions made at Court

1. As earlier indicated, counsel for the applicant effectively conceded (I do not have transcript, but I think he did so in terms) that the extant grounds of review were so broadly expressed as to be untenable.  As earlier indicated also, I agreed with that proposition.  The grounds of amended application do not identify in any comprehensible way any jurisdictional error.

2. Counsel commenced by referring to paragraphs 31-33 CB 273-274.  These are passages to which I have already referred in which the Tribunal accepted the applicant’s active support of the UNP from 2006 onwards and his vice presidency of the UNP National Youth Front in 2008.  Counsel submitted that these paragraphs revealed a failure to assess a well-founded fear of persecution.  Counsel referred to paragraphs 41 and 42 of the decision and said that these engaged grounds 1, 5 and 7 of the application.

3. The Tribunal had accepted the applicant’s involvement in the UNA in paragraphs 31-33 but it was submitted the Tribunal had not addressed the required question.  Counsel referred to the expression “little weight” in paragraph 41 and submitted that this was just a statement without having properly addressed the likelihood of the claims being addressed. 

4. The phrase “little weight” arises in the following passage in paragraph 41:

   “The Tribunal therefore places little weight on the statutory declaration provided by the applicant’s father in which he stated that he claimed he and his family, including the applicant, have been receiving political threats continuously.”

5. Counsel took the Court to authorities in support of this submission and I accept, of course, the Tribunal must properly assess the applicant’s claims.  The question is not however, whether there is authority establishing this well-established proposition, but whether or not the Tribunal actually did so in this case. 

6. The second substantive matter raised by counsel derives from paragraph 49 of the Tribunal’s decision CB278.  Counsel referred to the use of the phrase “implausible” and said that this was simply speculation.  In fact, the word “implausible” is contained in paragraph 48 in the following passage:

   “The Tribunal also finds it implausible that after attending one meeting at the end of 2012, the applicant would be attacked in the manner he claimed, when he had been actively supporting the party since 2006 and had held an official position in the National Youth Front, and nothing had really happened to him, apart from some threats to stop his activities and purportedly, to kill him.  The Tribunal does not accept the applicant’s explanation that because he did not stop his work they tried to attack him in December in 2012. It finds it implausible that these people would wait six years, after he continued his activities over those years and held the decision of Vice President of the National Youth Front, to attack him.  The Tribunal does not accept that the applicant’s explanation that the government is weakening or losing popularity and it is only because of this that they are starting to organise to attack “them” because they are getting stronger.  Further, the Tribunal finds it implausible that the government would be worried about the applicant’s activities in light of his relatively low profile based on his somewhat limited involvement with the National Youth Front and his absence from the country. Nor does the applicant accept that these people thought he may “succeed his father’s political activities” (which the Tribunal assumes to mean take over his father’s political role) because he is the eldest son and for this reason they attacked him.  The Tribunal again refers to the fact nothing happened to the applicant in the past and in light of the fact his father is still active in politics, according to his evidence in the hearing, the Tribunal does not accept the applicant’s assertion.”

7. The next matter raised by counsel arose from paragraph 51 of the Tribunal’s decision and refers to the passage earlier set out where the Tribunal gave “little weight” to the police report submitted by the applicant.  Counsel submitted that this was too broad an application of country information and evinced a failure to assess the likelihood of events occurring and was illogical. 

8. Counsel next referred to paragraph 35 CB274, in which, as earlier indicated, the Tribunal dealt with the applicant’s father’s arrest in 1996. It was submitted that this failed to pay proper regard to the police records at CB122-123.  It was submitted that the Tribunal’s finding that these charges were not false or politically-motivated disclosed jurisdictional error.

9. It was then submitted in a rolled up way, if I understood the submissions correctly (they were not always easy to follow), that these errors further contaminated the reasoning of the Tribunal as a whole.  It was submitted that the positive findings made in paragraphs 31-33 of the Tribunal’s decision record were not properly taken into account. 

10. Counsel for the First Respondent was content, essentially, to rely on written submissions.  He submitted that this was an application for judicial review.  Even if the Court disagreed with the findings made by the Tribunal, this would not be jurisdictional error. It was submitted that the Tribunal actively engaged with the applicant’s evidence and case and the weight to be applied to it was a matter for the Tribunal.  He submitted the Court should consider the reasons for decision as a whole and that the use of the phrase “little weight” did not show a failure to properly engage with the applicant’s case.

Consideration

1. Despite the concessions made by counsel for the applicant, which sought to disavow or, alternatively to refine the grounds of application, the reality is that the matters put by the applicant are all matters of merits review.

1. I have paraphrased the reasoning of the Tribunal in some detail.  In my opinion, it shows an entirely fair and proper engagement with the case the applicant put.  It should be noted that the Tribunal made a number of findings favourable to the applicant’s case and, indeed, to an extent gave him the benefit of the doubt. There can be no suggestion that the Tribunal failed to consider the applicant’s claims against the relevant legislation and although there is only glancing reference to PAM3 there is no reason to presuppose that it was not properly informed by it.

2. To my way of thinking, the Tribunal’s process of reasoning was an entirely fair and logical one.  It considered the applicant’s claims but was not bound to uncritically accept them.  The conclusions the Tribunal reached have already been indicated and, in my view were on the facts as disclosed, entirely open to it.  The Tribunal considered the claims of past harm and threats of harm against what was actually known to be the case.  This is not illogicality or taking into account irrelevant considerations, quite the contrary.

3. The use of the phrase “little weight” does not, in my opinion, suggest that the Tribunal did not properly engage with the material before it.  Rather, the Tribunal did not accept it.  Similarly, the use of the phrase “implausible” does not suggest some form of error.  It merely represents a conclusion open on the materials.

4. It should be noted that, unlike the delegate, the Tribunal did not, in a blanket way, reject all the documentation that the applicant provided.  The Tribunal accepted a certain amount of it.  Those aspects that the Tribunal did not accept, namely, the applicant’s father’s letter and the police report, were rejected for reasons that seem to be open to the Tribunal.  They arose from the history of the matter as a whole and the Tribunal’s conclusions in relation to it.

5. The arguments put for the applicant can not be accepted. The decision of the Tribunal does not disclose jurisdictional error. The application will be dismissed with costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  16 June 2016