Mzaiw v Minister for Immigration and Border Protection
[2016] FCA 330
•8 April 2016
FEDERAL COURT OF AUSTRALIA
MZAIW v Minister for Immigration and Border Protection [2016] FCA 330
Appeal from: MZAIW v Minister for Immigration & Anor [2015] FCCA 2536 File number: VID 621 of 2015 Judge: MOSHINSKY J Date of judgment: 8 April 2016 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court – application for a protection visa – new grounds raised on appeal – whether new grounds made out Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 36(2A) and 36(2B), 91R(1)(b) Cases cited: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 Date of hearing: 3 March 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 33 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr M Palfrey of Sparke Helmore Counsel for the Second Respondent: The second respondent did not appear ORDERS
VID 621 of 2015 BETWEEN: MZAIW
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
8 APRIL 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction
This is an appeal from a decision of the Federal Circuit Court of Australia dated 17 September 2015, which dismissed the appellant’s application seeking judicial review of a decision of the then Refugee Review Tribunal (the Tribunal). The Tribunal’s decision, made on 30 June 2014, was to affirm the decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a protection (Class XA) visa.
For the reasons that follow, in my view the appeal should be dismissed.
Background
In 18 May 2012, the appellant, a citizen of Sri Lanka, arrived in Australia as an unauthorised boat arrival.
On 24 August 2012, the appellant lodged a protection visa application accompanied by a statutory declaration detailing his claims. The appellant claimed to have a well-founded fear of persecution for the following reasons:
(a)His race. The appellant 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).
(b)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). The appellant claimed to fear persecution from the Sri Lankan authorities on the basis of his father’s imputed support for the LTTE. His father went missing in 1991 and never came back. The appellant also claimed that, as all his brothers had fled Sri Lanka to seek protection overseas, he feared persecution on the basis that he would be perceived to be opposed to the Sri Lankan government. The appellant also claimed that in 2011, the Sri Lankan authorities came looking for him and his brother.
(c)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). The appellant 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. The appellant claimed that he was harassed, rounded-up and humiliated by authorities on a daily basis on the way to school. The appellant also claimed 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. The appellant 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.
On 17 July 2013, the delegate of the Minister refused the application for a visa.
On 19 July 2013, the appellant lodged an application in the Tribunal seeking review of the delegate’s decision.
On 18 February 2014, the appellant was invited to attend a hearing before the Tribunal. On 19 March 2014, the appellant’s agent provided written submissions. On 2 April 2014, the appellant attended the Tribunal with his lawyer and provided documents demonstrating that one brother had been granted asylum in the UK and another brother had been granted leave to stay in the UK indefinitely. On 22 May 2014, the appellant 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. On 5 June 2014, the appellant’s agent provided a written response that claimed that the appellant’s answers had been misinterpreted and this had given rise to inconsistencies.
On 30 June 2014, the Tribunal affirmed the delegate’s decision. The Tribunal found that the appellant’s account was “inconsistent with [his] earlier account and in other aspects it was vague and lacking in detail” (paragraph [24] of the Tribunal’s reasons). It found that aspects of his claim were implausible. In particular, the Tribunal found as follows:
(a)The Tribunal found that there was no real chance that the appellant would suffer serious harm and no real risk of significant harm on account of his brothers. While it accepted that he had three brothers who live 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 (Tribunal’s reasons, [33]-[36]).
(b)The Tribunal found that there was no real chance that the appellant would be seriously harmed on account of his father or his brother (Tribunal’s reasons, [48]) and that the appellant had exaggerated the influence of his father’s claimed profile (Tribunal’s reasons, [47]).
(c)It was not satisfied that the incident involving the army and his friends during a religious ceremony had occurred and found that it was also inconsistent with country information regarding the presence of the army in Udappu (Tribunal’s reasons, [58]). The Tribunal was also not satisfied that there was a real chance that the appellant would suffer serious or significant harm for reason of his Hindu religion or that he would be prevented from practising his religion based on country information and the appellant’s past experiences (Tribunal’s reasons, [58]).
(d)It did not accept that armed men came to his home looking for him and/or his brother in 2011 or 2012 (Tribunal’s reasons, [63]) or that there were daily incidents of round ups and humiliation (Tribunal’s reasons, [65]).
(e)It accepted that he 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 he was able to compete after he was released, the Tribunal did not accept that he was seriously or significantly harmed by the police (Tribunal’s reasons, [68]).
(f)While it accepted unknown people had tried to abduct his nephew after the appellant left Sri Lanka, the Tribunal was not satisfied this led to a real chance or real risk the appellant would be harmed (Tribunal’s reasons, [69]).
(g)As a result, the Tribunal found that the appellant 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 or young Tamil males suspected of association with or supporting the LTTE (Tribunal’s reasons, [71]).
The Tribunal accepted the appellant would be questioned about his illegal departure but did not accept that this would amount to serious or significant harm (Tribunal’s reasons, [73]) and found that he did not fall into any of the categories who might be at risk on return. Further, the Tribunal did not accept that he would be imputed with a political opinion as a result of applying for asylum in Australia or that he would face a real chance of serious harm as a failed asylum seeker from Australia upon return to Sri Lanka (Tribunal’s reasons, [74] and [80]).
The Tribunal was satisfied that if the appellant was charged with an offence as a consequence of his illegal departure from Sri Lanka, he would be held in remand for a short period (as he would be granted bail) (Tribunal’s reasons, [87]) but found that this short period of remand would not give rise to a real risk the appellant would suffer significant harm (Tribunal’s reasons, [93]).
The Tribunal found the most likely penalty as a result of a conviction would be a fine and found that the imposition of such fine would not give rise to a real risk of significant harm (Tribunal’s reasons, [94]-[96]).
The Tribunal found that the appellant’s status as a failed asylum seeker or a returnee who may be charged with improperly departing Sri Lanka does not give rise to substantial grounds for believing that there was a real risk of significant harm upon being returned to Sri Lanka (Tribunal’s reasons, [99]).
Having considered the appellant’s claims cumulatively, the Tribunal was not satisfied that there was a real chance that the appellant was a person in respect of whom Australia had protection obligations (Tribunal’s reasons, [100]-[104]).
The Federal Circuit Court decision
The appellant sought judicial review of the Tribunal’s decision by the Federal Circuit Court. The appellant’s application raises two grounds of review:
(a)that the Tribunal did not afford the appellant procedural fairness; and
(b)that the Tribunal applied the wrong legal test.
The matter was heard on 13 August 2015, with reasons delivered on 17 September 2015 (the Reasons). The primary judge considered that the Tribunal had “provided a comprehensive and well-reasoned decision” (Reasons, [15]).
The primary judge held that there was no merit to the appellant’s contention that the Tribunal applied the wrong test as it “was mindful of ss 36(2)(a), 36(2)(aa), 36(2A) and 36(2B)” of the Migration Act 1958 (Cth) (the Act) and “made findings which involved no misconstruction or misapplication of those legal provisions” (Reasons, [15]).
In relation to the first ground, the primary judge held there was “no evidence that the Tribunal failed to consider any of the [appellant’s] claims or integers of the [appellant’s] claims, nor any lack of compliance by the Tribunal with Division 4, Part 7 of the Act” (Reasons, [16]).
The primary judge held that the Tribunal’s decision “sets out all the issues relevant to the determination of the [appellant’s] claim and such issues and material that was adverse to the [appellant] was raised with him during the Tribunal’s hearing and, in particular, in the post hearing letter” (Reasons, [19]).
The primary judge concluded that there was no merit to the judicial review application on the grounds as set out in the application and added: “Indeed nor is there any grounds upon an examination of the decision itself” (Reasons, [33]).
The appeal
The appellant appeals from the decision of the Federal Circuit Court by notice of appeal filed on 5 October 2015. The notice of appeal contains two grounds of appeal:
1.The learned judge erred in holding with the Tribunal that the discrimination perpetrated on the appellant at the sporting event was [sic] not amount to serious harm for the purpose of s 91R(1)(b) of the Migration Act, because he was able to compete when released without giving weight to the fact that the appellant was again disqualified and denied the fruit of success due to his profile after coming first in the sporting event.
2.The Tribunal has not assessed the appellant [sic] claims cumulatively of being a Young Tamil sportsman of Hindu faith of imputed political opinion as a consequence of his deceased father’s profile with LTTE and his membership of a particular social group. Cumulative claims in it self [sic] is an integer, the learned judge erred when not addressing this integer claim was not assessed by the Tribunal.
These grounds of appeal appear to raise new issues which were not argued before the Federal Circuit Court. The Minister submits that insofar as the grounds may raise issues that were not before the Federal Circuit Court, they should only be allowed if they clearly have merit and there is no real prejudice in permitting them to be agitated: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]. The Minister submits that there is no basis for these grounds to be raised but, in any event, there is no substance to the complaints which the appellant seeks to make.
It is convenient to note at this point that the appellant did not file any written outline of submissions in support of his appeal. At the hearing of the appeal, the appellant was not represented by a lawyer and made submissions through an interpreter. The appellant’s oral submissions were brief and essentially involved reiterating the two grounds of appeal.
In relation to the first ground of appeal, the relevant part of the Tribunal’s reasons is paragraphs [66]-[68]. After setting out the appellant’s claims in relation to discrimination as a sportsperson, the Tribunal said at [68]:
The Tribunal accepts that the applicant might have been briefly detained by the police when competing in a different town. Due to the discrepancy in his account as to what occurred when detained and as the applicant was able to compete after he was released and came first the Tribunal does not accept that he was seriously or significantly harmed by the police. The Tribunal accepts that the applicant was discriminated against in the selection for competition and that this was on the basis of his ethnicity but finds that his discrimination does not amount to serious harm within the meaning of s 91R(l)(b) of the Act nor does it amount to significant harm within the meaning of s 36(2A) and s 5 of the Act. The Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of being a member of the particular social group of young Tamil sportsmen. The Tribunal is also satisfied that there are 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 that he will suffer significant harm as a Tamil sportsman.
The primary judge set out, in paragraph [14] of the Reasons, a summary of the appellant’s claims to have a well-founded fear of persecution. Relevantly, the primary judge set out the following claim:
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.
In paragraph [25] of the Reasons, the primary judge said:
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(l)(b) of the Act.
It appears that the appellant did not make any submissions during the hearing below along the lines of ground 1 of the notice of appeal or specifically challenging the Tribunal’s findings in paragraph [68] of the reasons of the Tribunal. For these reasons, there is no consideration in the Reasons of the point now raised by ground 1 of the notice of appeal. In these circumstances, no error is shown in the primary judge’s Reasons in relation to the matter sought to be raised by ground 1.
Assuming (without deciding) that the appellant should nevertheless be permitted to raise ground 1 of the notice of appeal, in my view the ground is not made out. In paragraphs [66] and [67] of the Tribunal’s reasons, it recorded the appellant’s evidence in relation to discrimination as a sportsperson as follows:
66.The applicant claimed that he was discriminated against as a sportsman. In 20l0 he was competing in Kurumegalle (Kurunegala) and he was picked up by the police for no reason and taken to the station and beaten up. The police were all Sinhalese. The applicant’s trainer mediated for him to be released. The applicant told the Tribunal that he was held [for] two hours abused in Singhalese and kicked on the back and slapped on his cheek. After he was released he competed and came first. The applicant was disqualified at the competition for no reason. The applicant continued to be involved in athletics.
67.In the post hearing letter the Tribunal put to the applicant that he had told the Tribunal that in 2010 when he was at an athletics competition in Kurumegalle he went to get a bandage and he was arrested by the police and held for two hours. The police kicked him to the back and slapped him on the cheek. He told the delegate that the police beat him with a gun butt and with sticks on his feet and that his feet were stomped on. The delegate expressed some surprise that he was able to compete in an athletic event after this treatment. In a statutory declaration in response to the post-hearing letter the applicant claimed that he had checked the hearing recording with a new interpreter and has noted that there was some misinterpretation. He had told the Tribunal that he was stomped on and slapped to the cheek and that he had confirmed that he was hit with sticks.
In light of the above passage, it is apparent that the Tribunal (in the second sentence of paragraph [68], set out in paragraph [23] above) doubted the appellant’s account of his detention (which included that the police beat him with a gun butt and with sticks on his feet and that his feet were stomped on) partly because he was able to compete after he was released and came first.
The Tribunal accepted, in the third sentence of paragraph [68], that the appellant was discriminated against in the selection for competition and that this was on the basis of his ethnicity (but found that this did not amount to serious harm or significant harm within the meaning of the relevant provisions). Although the Tribunal here referred to discrimination in relation to selection for competition, and did not refer to the appellant’s disqualification after coming first, it is plain that the Tribunal considered this matter (having set it out in paragraph [66]) and the same reasons may be taken to apply to the disqualification.
By his second ground of appeal, the appellant contends that the Tribunal did not assess the appellant’s claims cumulatively. This ground of challenge to the Tribunal’s decision does not appear to have been raised specifically in the Federal Circuit Court. Nevertheless, the primary judge considered whether the Tribunal had considered the claims cumulatively. The primary judge held at paragraph [32] of the Reasons:
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.
In my view, the primary judge was correct to hold that the Tribunal considered the appellant’s claims cumulatively: see paragraphs [100]-[101] of the Tribunal’s reasons, where the Tribunal expressly considered the appellant’s claims cumulatively. For these reasons, the appellant’s second ground is not made out.
I note for completeness that at the hearing of the appeal, the appellant referred to his brothers’ successful asylum claims in the UK. He said that their claims succeeded on the basis of what is ground 2 of his notice of appeal. Nevertheless, for the reasons set out above, ground 2 of the notice of appeal is not made out. I note also that the Tribunal considered the evidence relating to the appellant’s brothers at paragraph [25]-[36] of its reasons.
For these reasons, the appeal will be dismissed. Both parties accepted at the hearing that costs should follow the event. Accordingly, there will be an order that the appellant pay the Minister’s costs as agreed or taxed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky. Associate:
Dated: 8 April 2016
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