MZAIF v Minister for Immigration

[2016] FCCA 334

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAIF v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 334

Catchwords:
MIGRATION – Judicial review.

Legislation:

Migration Act 1958 (Cth), s.91R

Cases cited:
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Border Protection v WZAPN & Anor; WZARV v Minister for Immigration and Border Protection & Anor [2015] HCA 22

Applicant: MZAIF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1413 of 2014

Judgment of: Judge Harland

Hearing date: 8 February 2016

Date of Last Submission: 8 February 2016

Delivered at: Melbourne

Delivered on: 8 February 2016

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application filed on 14 July 2014 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $4,219.00.

3. The title of the proceeding be amended so that the name of the second respondent is the ‘Administrative Appeals Tribunal’.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1413 of 2014

MZAIF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The application before me today is an application for judicial review.  The application for judicial review was filed on 14 July 2014 and is a review of a Tribunal decision which was handed down on 20 April 2014. The applicant applied for a protection visa on 30 October 2012.  The applicant is a citizen of Sri Lanka and is a Tamil and a Muslim. 

3. The Tribunal addresses the applicant’s claims in its decision. In addition to considering the documents set out at paragraph 20 of the decision, the Tribunal Member also considered the oral evidence of the applicant at the hearing. Paragraph 20 also records that the Tribunal Member received further written submissions from the applicant’s agent which were dated 16 May 2014, prior to the decision being handed down. 

4. The Tribunal decision sets out the requirements that the applicant must meet in order to be granted a protection visa. The Full Court in the decision of Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 summarises the legislation at paragraph 65 to 72:

   The Migration Act provides for the circumstances in which a person who is not a citizen of Australia (a non-citizen) may enter Australia.

   It provides, subject to certain exceptions that are not here relevant, that a non-citizen must not travel to Australia without a visa that is in effect: s 42(1).

   The Act provides for classes of visas: s 31. Visas may be permanent or temporary: s 30. One class of visa is a protection visa: s 36(1). The criterion for a protection visa is provided for in s 36(2). It relevantly provides:

   (2) A criterion for a protection visa is that the applicant for the visa is:

   (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ...

   Section 36(2)(a) relates to a claim for protection by a non-citizen relying upon Article 1A(2) of the Refugees Convention, which defines a refugee as a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a political social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   If a non-citizen is a person who has a well-founded fear of persecution for a Convention reason and satisfies the other criteria of Article 1A(2) of the Refugees Convention, that non-citizen will be entitled to a protection visa and therefore to remain in Australia as a lawful non-citizen.

   Section 36(2)(aa) was first introduced into the Migration Act on 24 March 2012. It recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.

   If a non-citizen makes a valid application for a protection visa, s 36(2) envisages the Minister will proceed in the following order. First, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations under the Refugees Convention. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the Minister will consider whether the non-citizen is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen’s removal from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. If the Minister is so satisfied, the Minister will grant the non-citizen a protection visa. If the Minister is not so satisfied, the non-citizen, subject to any rights of review, will have exhausted the non-citizen’s rights to obtain the grant of a protection visa.

   Paragraphs (a) and (aa) of s 36(2) recognise that Australia has obligations to any non-citizen who satisfies one of those paragraphs to allow those non-citizens to remain in Australia free from the persecution or the harm that they would suffer by being returned to their country of nationality or any receiving country.

5. Essentially, there are four elements to a protection claim. The first is that the applicant was outside his country of residence and the Tribunal was satisfied about that step. The remaining factors are that the applicant feared persecution and serious harm and that the fear was for a Convention reason and that the fear was well-founded.  It is those aspects of his claim that the Tribunal was not satisfied about. 

6. The written submissions provided by the first respondent summarises the claims the applicant made. These claims included that he and his brother were harassed by a group of Singhalese men after they started a business. The next claim was based on fears that his former wife’s brother had threatened him and that his former wife’s brother had connections with the Colombo underworld and would harm him if he went through with his second marriage, which he did.

7. It is clear from reading the Tribunal decision that the Tribunal considered each of these complaints.  They are set out at paragraphs 21 to 30 of the decision. The Tribunal assesses those claims at paragraphs 48 through to 60. The Tribunal member also refers to country information which indicated that the situation generally in Sri Lanka had improved for Tamils and for Muslims. After considering the applicant’s evidence and that country information, the Tribunal was not satisfied that the applicant would face a real chance of persecution if he returned to Sri Lanka based on his religion, his imputed Tamil race, his membership of a particular social group or any combination of those factors.

8. The Tribunal also dealt with the allegation that he had lost money that others had gathered in order to pay a people smuggler to leave Sri Lanka, but the applicant told the Tribunal that his father-in-law was paying that off and it was no longer a problem. Accordingly, the Tribunal member did not accept that that was a ground for believing that the applicant would be persecuted if he returned to Sri Lanka.

9. The Tribunal then dealt with the claim that the applicant made about being afraid of his ex-brother-in-law. The Tribunal member specifically refers to the applicant’s claims that his ex-brother-in-law has spent time in jail and has criminal connections. The Tribunal member at paragraph 59, after reciting this, accepted that his ex-brother-in-law warned him and his new wife about marrying and made a threat to kill them.  The Tribunal member also noted that he sat outside of the court room when the divorce occurred, but noted that the applicant’s own evidence was that they did not do anything at the time of the hearing. It was also noted that the applicant was divorced in March 2012 and remained in Sri Lanka for another several months until May 2012 and did not allege that he was again harmed or threatened by his ex-brother-in-law during that period.

10. There was also no suggestion that his current wife had been approached by these men since then and the Tribunal member noted that two and a half years had passed. In weighing up the circumstances, the Tribunal member was not satisfied that there was a real chance of persecution by his ex-brother-in-law and his associates if he returned. 

11. The first and second grounds set out in the applicant’s application for judicial review are the same and state that the Tribunal failed to properly consider all of the applicant’s claims.  After explaining the nature and the procedure of today’s hearing, I invited the applicant to expand on what he meant by that complaint.  He referred to the danger from his ex-brother-in-law and that he was fearful for his safety and the safety of his current wife. 

12. As I have outlined, that claim was clearly addressed by the Tribunal member.  It is apparent from what the applicant said that his complaint is that the Tribunal Member did not believe him.  The powers that this Court have are limited to that of identifying an error in the Tribunal’s reasoning that would amount to a jurisdictional error.  This Court has no role in conducting a merits review which is really what the applicant is inviting me to do with respect to the first ground. 

13. The applicant also said that the situation has improved in Sri Lanka insofar as the Singhalese problems are concerned. The factor that really concerns the applicant is the danger he perceives that he faces from his former brother-in-law if he returns to Sri Lanka.  He stated that in Australia he does not have those worries. 

14. Having considered the documents and the evidence before the Tribunal and the Tribunal decision, I find that the Tribunal did properly consider the claims the applicant put before it and therefore the first and second ground must be dismissed.  I should note for sake of completeness that the Tribunal decision also addressed the complementary protection provisions and considered whether or not the applicant would face persecution and serious harm as a result of returning to Sri Lanka as a failed asylum seeker from a Western country. 

15. The Tribunal also addressed that concern in light of country information and found that there was nothing to suggest that he would suffer any discriminatory conduct as a result of his return and that the Act, which deals with the regular departure, is of general application and that a short-term imprisonment or fine would not amount to significant harm pursuant to section 36(2)(a).

16. The third ground that the applicant complains of is that the Tribunal did not provide him with a professional interpreter and that when he complained to the Refugee Review Tribunal, the last 30 minutes of the hearing occurred without any interpreter.  The applicant said in oral submissions today that the interpreter was there throughout the hearing, but during a break he told his lawyer that he could not understand the interpreter and then he told the lawyer that he would speak for himself and that is what he meant when he refers to the last 30 minutes of the hearing being conducted without any interpreter.

17. As pointed out by the first respondent in his written submissions, it is of some significance to note that the applicant’s migration agent, who attended the hearing, provided written submissions after the hearing date and before the decision was handed down which make no reference to any complaint about the interpreter.  The Registrar’s orders made on 23 October 2014 clearly refer to the applicant filing further evidence including any transcript.  The applicant has not filed a transcript or any written submissions in these proceedings. 

18. I note that this matter was adjourned by consent on 13 March 2015 to enable the High Court to determine the outcome of Minister for Immigration and Border Protection v WZAPN & Anor; WZARV v Minister for Immigration and Border Protection & Anor [2015] HCA 22 as well as the other decisions referred to in order 2 of the orders made on 13 March 2015. The first decision was handed down on 17 June 2015 but did not raise any issue that needed further consideration. The decision was focused on section 91R of the Migration Act 1958 (Cth).

19. Exhibit A in these proceedings is a letter from the first respondent’s solicitors to the applicant dated 6 July 2015.  The applicant took issue with the third paragraph of that letter. As it turns out, what he wanted to make clear and has made clear is that he was not alleging that the interpreter was absent during the last part of the hearing, rather that the interpreter did not interpret for him for the last half of the hearing and he spoke for himself.

20. Paragraph 3 of that letter was significant because it notes that the solicitors have listened to parts of the recording of the hearing and noted that the Tamil interpreter was present.  The letter specifically says:

    “If it is your intention to rely on the allegation made in your third ground of review, you need to provide evidence to support your allegation, in the form of a transcript of the tribunal hearing.  If you require a copy of the recording, please let me know and a copy can be posted to you”.

21. The applicant has had some six months to arrange to receive a copy of the recording and have a transcript prepared.  Without that transcript, it is impossible to assess that claim.  There are several authorities which deal with the issue of complaints about interpreters.  It was clear that whilst the applicant has had plenty of time to provide that evidence and was on notice that his claim with respect to the interpretation could be made out without it, the applicant has not provided that evidence.  Therefore, the applicant’s third ground cannot succeed and must be dismissed. 

22. I will make an order that the applicant is to pay costs fixed in the sum of $4,219.00.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 19 February 2016