MZAIW v Minister for Immigration

[2015] FCCA 2536

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAIW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2536

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – no merit to grounds of judicial review – application dismissed. 

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A), 36(2B), 46A(2), 91R(1)(b), 422B, 424A, 424AA, 425, 425A

1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10

Applicant: MZAIW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1506 of 2014

Judgment of: Judge Hartnett

Hearing date: 13 August 2015

Delivered at: Melbourne

Delivered on: 17 September 2015

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Noble

Solicitors for the First Respondent: Sparke Helmore

THE COURT ORDERS THAT:

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

2. The Application filed on 17 July 2014 is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1506 of 2014

MZAIW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By Application filed on 17 July 2014, the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) made on 30 June 2014.  In that decision, the Tribunal affirmed a decision of a Delegate of the Minister for Immigration & Border Protection (‘the Delegate’) not to grant the Applicant a Protection (Class XA) visa (‘the visa’).  In the grounds of application as set out, no particulars were provided.  The grounds of application were merely:-

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

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

2. In oral submissions at the hearing, the Applicant was unable to particularise those matters he complained of.

3. By Response filed on 1 September 2014, the First Respondent sought dismissal of the application on the basis that the Application for judicial review did not establish any jurisdictional error in the decision of the Tribunal.

4. On 5 November 2014, the Court ordered, by consent, amongst other orders, that on or before 4 February 2015, the Applicant file and serve any amended application including any additional grounds of review with complete particulars of each ground and further written submissions prior to the final hearing.  The First Respondent did not comply with either of those orders.  On the final hearing of the matter, there was, otherwise, before the Court the evidence as contained in the Court Book filed by the First Respondent and the First Respondent’s Written Submissions. 

History

1. The Applicant was born on 3 March 1992 in Sri Lanka. He is aged 23 years. He is a Hindu Tamil. He arrived in Australia as an unauthorised boat arrival without any identity documents. The Tribunal was satisfied that he was a Sri Lankan national who resided in Sri Lanka before coming to Australia in May 2012, and that Sri Lanka is his receiving country for the purposes of s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).

2. On 24 August 2012, the First Respondent exercised his power under s.46A(2) of the Act to allow the Applicant to lodge a visa application and, on the same day, the Applicant did so. That Application was accompanied by a statutory declaration detailing the Applicant’s claims. The Applicant had earlier participated in an entry interview.

3. On 17 July 2013, the Delegate refused the application for a visa.  On 19 July 2013, the Applicant lodged an Application in the Tribunal seeking review of the Delegate’s decision.

4. On 18 February 2014, the Applicant was invited to attend a hearing of the Tribunal.  On 19 March 2014, the Applicant’s agent provided written submissions.  Those submissions attached a statement from the Applicant which claimed he had three other brothers who had successfully claimed asylum in the United Kingdom.

5. On 2 April 2014, the Applicant and his lawyer attended the Tribunal for a hearing. He was assisted by an interpreter in the Tamil and English languages.  At the hearing, the Applicant provided documents demonstrating that one brother had been granted asylum in the United Kingdom and another brother had been granted leave to stay in the United Kingdom indefinitely.

6. On 22 May 2014, the Tribunal invited the Applicant to comment on, or respond to, information which the Tribunal considered would, subject to the Applicant’s comments or response, be the reason or a part of the reason for affirming the decision under review.

7. Essentially, the Applicant was invited to comment on inconsistencies in his evidence between what was said at his entrance interview, and what he later claimed; what he told the Delegate and what he told the Tribunal; and his evidence and that of his brother.  The Applicant was told by the Tribunal the following:-

   “This information is relevant to the review because due to your failure to mention being detained in 2011 in your entry interview and the inconstancies (sic) in your account as to what occurred when you were arrested[,] the Tribunal may not accept that you were arrested and detained for2 days in 2011.”[1]

   [1] Letter from the Refugee Review Tribunal to Mr Sajeethan dated 22 May 2014.

8. On 5 June 2014, the Applicant’s lawyer provided a written response to the invitation to comment and a Statutory Declaration from the Applicant declared at Preston in the State of Victoria on 3 June 2014 was forwarded to the Tribunal.  The response claimed that the Applicant’s answers had been misinterpreted and that had given rise to the inconsistencies with the previous evidence provided by him.

9. On 30 June 2014, the Tribunal affirmed the Delegate’s decision.

10. As succinctly set out in the First Respondent’s Written Submissions at paragraph 14, the Applicant claimed to have a well-founded fear of persecution for the following reasons:-

    “His race

    14.1 The applicant claimed that he suffered persecution on the basis of his Tamil ethnicity.  This claim overlapped with his claim of persecution on the basis of his imputed political opinion (being perceived as a LTTE supporter) and on the basis of membership of a particular social group (Young Tamil Men).

    His imputed political opinion (as a consequence of his father’s profile with the LTTE, being a member of a family with four brothers outside of Sri Lanka and his act of seeking asylum)

    14.2 The applicant claimed that his father - a fisherman - disappeared in 1991 and never came back.  His mother told the applicant he had died in the war and his father was perceived to have been a member of the LTTE.  As a consequence of his father’s suspected involvement in the LTTE, the applicant claims to fear persecution from the Sri Lankan authorities on the basis of his imputed support for the LTTE.

    14.3 The applicant claimed that in 2011, the Sri Lankan authorities came looking for him and his brother.

    14.4 The applicant claims that as he has four brothers, all of whom have fled Sri Lanka to seek protection overseas, he fears persecution on the basis that he will be perceived to be opposed to the Sri Lankan government.

    His membership of a particular social group (Young Tamil men who are suspected of associating with or supporting the LTTE and being a failed asylum seeker)

    14.5 The applicant did not expressly rely on his Hindu faith as a basis for claiming protection but claimed that in February or March 2011, he and his friends held a religious ceremony and were arrested by army officers and detained in a nearby army camp.  They were detained for two days and tortured, beaten and had guns put to their heads.

    14.6 The applicant claimed that he was harassed, rounded-up and humiliated by authorities on a daily basis on the way to school.

    14.7 The applicant also claims to have suffered discrimination as a sportsman.  In 2010, after being selected to compete in a provincial running competition he was picked up and taken to a police station and beaten.  After being released he managed to compete but was disqualified for no reason after coming first.  In 2011, the authorities refused to select him for a national competition after he came second in another running competition.

    14.8 The applicant claimed that he would be persecuted if he was to be returned to Sri Lanka due to his Tamil ethnicity and his act of seeking asylum.”[2]

    [2] First Respondent’s Written Submissions filed on 4 August 2015 at [14.1] – [14.8].

Consideration

1. The Tribunal provided a comprehensive and well-reasoned decision. As to the Applicant’s assertion that the Tribunal applied the wrong legal test, there is no merit to that ground. The Tribunal was mindful of ss.36(2)(a), 36(2)(aa), 36(2A) and 36(2B) of the Act. It correctly described the terms of these provisions at the commencement of its decision in relation to the refugee criterion and complementary protection criterion. It made findings which involved no misconstruction or misapplication of those legal provisions.

2. In respect of the first ground of the judicial review application, there is no evidence that the Tribunal failed to consider any of the Applicant’s claims or integers of the Applicant’s claims, nor any lack of compliance by the Tribunal with Division 4, Part 7 of the Act which is taken to be an exhaustive statement of the requirements of natural justice in relation to the matters it deals with (s.422B of the Act).

3. Sections 425 and 425A of the Act obliged the Tribunal to invite the Applicant to appear before it to give evidence and present arguments. The Tribunal clearly complied with that obligation.

4. There is no suggestion, nor any appearance, of the Tribunal failing to properly disclose to the Applicant particular information in accordance with ss.424AA and 424A of the Act. In the course of reaching its decision, the Tribunal relied on information given by the Applicant during the course of his visa application, and at the Tribunal’s hearing, and independent country information not specifically relating to the Applicant. The weight to be given to country information is a factual matter for the Tribunal.[3]

   [3] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10 at [11] – [13].

5. The Tribunal’s Decision Record sets out all the issues relevant to the determination of the Applicant’s claim and such issues and material that was adverse to the Applicant was raised with him during the Tribunal’s hearing and, in particular, in the post hearing letter.  Doubts that the Tribunal had regarding the credibility of the Applicant were put to him during the hearing and in the post hearing letter.  The Tribunal said at paragraph 24 of its Decision Record:-

   “The Tribunal found that the applicant’s account was inconsistent with [his] earlier account and in other aspects it was vague and lacking in detail. He made several unsubstanted (sic) and unsupported claims. The Tribunal also found aspects of his claims implausible. The applicant was invited to comment on a number of inconsistencies in a post-hearing letter sent to him pursuant to s424A of the Act (the post hearing letter) …”[4]

   [4] Refugee Review Tribunal Decision Record dated 30 June 2014 at [24].

6. And further, at paragraph 59 to 63 inclusive of its Decision Record, the following:-

   “Persons coming to his home looking for him and his brother

   59.  In his protection visa application the applicant stated that in 2011 and April 2012 unknown men came to his house asking for him and his brother.  In 2012 the applicant was home but managed to escape and hide in a neighbour’s home.

   60.  In his statement made 26 February 2014 the applicant said that he believed in early 2012 a white van came for him and[/]or his brother.

   61.  His evidence to the Tribunal was that there was only one occasion when the Sri Lanka authorities came looking for him and his brother and this was in 2011.  The Tribunal discussed the discrepancies in the number of times that people came looking for him.  The Tribunal asked if they had come more than once and the applicant said he was not certain, he knew that they came once looking for him.  The Tribunal discussed with him that he had previously said they came on two occasions.  He responded that they may have come he was not sure. The Tribunal put to the applicant that it found it odd that that (sic) his brother had been detained in 2001 and released, apparently had no further problems that the applicant was aware of, that 10 years later they would come looking for him particularly since this was 2 years after the war had ended.

   62.  As put in the post hearing letter, the applicant’s brother in his entry interview, protection visa application and interview with the delegate said nothing adverse happened between 2007 and 2012.  After the delegate’s interview he made the claim that the authorities had come looking for him once in 2011 and once in 2012.  His brother said that he had not mentioned these incidents before because he was confused. The Tribunal put to the applicant that as his brother did not mention that the authorities came looking for him in 2011 and 2012 until after his interview with the delegate the Tribunal may form the view that this claim was a recent invention on his brother’s part after he became aware of the applicant’s claims and that his claims were not true regarding people looking for him in 2011 and 2012.

   63.  Due to the discrepancies in the applicant’s account and the vague nature of this evidence as to whether they were looking for him or his brother, the fact his brother only supported this claim at a late stage and the fact there would be no reason for the authorities to have an interest in the applicant or his brother at this time, the Tribunal does not accept that armed men came to his home looking for him and/or his brother in 2011 or 2012 and that this led to the applicant leaving Sri Lanka.”[5]

   [5] Refugee Review Tribunal Decision Record dated 30 June 2014 at [59] – [63].

7. The Tribunal found that, based on the family’s past experience, there was no real chance that the Applicant would suffer serious harm or real risk of significant harm on account of his brothers.  While it accepted he had three brothers who lived in England, and accepted that one had been granted asylum, there was no evidence as to why it had been granted or why the other two were able to remain in England.

8. The Tribunal found there was no real chance that the Applicant would be seriously harmed on account of his father or brother.  It accepted his father went missing, and that one of his brothers was detained in 2001 but was not satisfied the father was perceived or imputed to be linked to the Liberation Tigers of Tamil Eelam (‘LTTE’), nor did it accept his brother was involved in the LTTE or that his detention was linked to his father’s profile given he had been missing for 10 years at the time of the brother’s detention.

9. Due to the Applicant’s failure to mention the incident in his entry interview and the inconsistencies in his evidence to the Delegate, the Tribunal did not accept that the incident involving the army and his friends during a religious ceremony had occurred.  It was also inconsistent with country information regarding the presence of the Army in Udappu.

10. The Tribunal found the Applicant was prone to exaggeration and did not accept there were daily incidences of round-ups and humiliation.

11. The Tribunal accepted the Applicant might have been detained briefly by police at a sporting competition but, due to the discrepancy in his account as to what occurred when detained, and the fact that he was able to compete when released, the Tribunal found this discrimination did not amount to serious harm for the purposes of s.91R(1)(b) of the Act.

12. The Tribunal accepted unknown people had tried to abduct his nephew after the Applicant left Sri Lanka, but was not satisfied this would lead to a real chance or real risk the Applicant would be harmed.

13. As a result, the Tribunal found the Applicant did not have a well-founded fear of persecution for reasons of his ethnicity or reasons of his membership of the particular social group of Young Tamil Men who are suspected of associating with or supporting the LTTE.

14. The Tribunal accepted that the Applicant would be questioned about his illegal departure but did not accept, based on his past experiences and country information, that this would amount to serious or significant harm and found he did not fall into any of the categories who might be at risk on return.

15. Based on country information, the Tribunal accepted the prison conditions in Sri Lanka are poor and overcrowded, and the Applicant may suffer discomfort whilst in prison on return but found he would be detained for only a short time.  The Tribunal found such detention would be consequent upon the operation of laws of general application and would not amount to persecution.  The Tribunal did not accept that a relatively short period of remand amounted to an act or omission which is intended to cause extreme humiliation which is unreasonable.

16. The Tribunal found that the likelihood of a prison sentence for the Applicant was remote and not a real risk.  It did not accept that the imposition on the Applicant of a fine between 5,000 and 100,000 Sri Lankan rupees would give rise to a real risk of significant harm.  The Tribunal was satisfied the Applicant would be able to pay any fine imposed.

17. The Tribunal found the Applicant did not face a real chance of serious harm in Sri Lanka as a member of a particular social group of failed asylum seekers or Tamil failed asylum seekers who had left illegally, or because he left illegally.  It did not accept he would be imputed with a political opinion as a result of applying for asylum in Australia or that he would be regarded as supporting the LTTE.  Thus, the Tribunal was satisfied that there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk the Applicant would suffer significant harm.

18. The Tribunal also considered the Applicant’s claims cumulatively and, on such consideration, concluded there was no real chance the Applicant would be persecuted for a 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees reason in the reasonably foreseeable future and that his fear of persecution was not well-founded.  Likewise, the Tribunal found that when looking at the Applicant’s claims cumulatively there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there was a real risk that he would suffer significant harm.

19. There is no merit to the judicial review application on the grounds as set out in that Application. Indeed nor is there any grounds upon an examination of the decision itself. The application shall be dismissed with costs following the event.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 17 September 2015