MZAKY v Minister for Immigration

[2015] FCCA 2917

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAKY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2917

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424(3)(a), 425

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553

MZAGZ v Minister for Immigration & Anor [2015] FCCA 1702

NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) (2004) 219 ALR 27

Applicant: MZAKY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1914 of 2014

Judgment of: Judge Hartnett

Hearing date: 24 September 2015

Delivered at: Melbourne

Delivered on: 24 September 2015

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Mitchell

Solicitors for the First Respondent: Clayton Utz

ORDERS

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

2. The Application filed on 19 September 2014 is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1914 of 2014

MZAKY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Before the Court is an Application filed on 19 September 2014 wherein the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it then was), (‘the Tribunal’), dated 19 August 2014.  In that decision, the Tribunal affirmed a decision of the First Respondent (the Minister by his Delegate) not to grant the Applicant a Protection (Class XA) visa (visa).

2. The application seeks an order that the decision of the Tribunal or Minister be quashed. The grounds of application are as follows:-

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

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

3. There are no particulars with respect to these grounds.  The First Respondent filed a Response to application dated 1 October 2014.  The First Respondent sought that the application be dismissed and sought in the Outline of Submissions filed by the First Respondent that the application be dismissed with costs.  Those submissions are dated 10 September 2015 and relied upon by the First Respondent.  This matter proceeded before Registrar Caporale on 17 December 2014 and consent Orders were made on that day.  Those consent Orders included order 2:-

   “On or before 42 days prior to the final hearing, the applicant shall file and serve:

   (a)     an amended application;

   (b)     a supplementary court book if any; and

   (c) written submissions.”

4. The Applicant filed no amended application, nor any written submissions.  The First Respondent filed in the proceedings a Court Book and Supplementary Court Book and both those court books contain evidence before the Court on the hearing of this application. 

History

1. The Applicant was born on 3 November 1974 in Udappu Puttalam, Sri Lanka.  He is a Tamil and follows the Hindu religion.  He is married and has two children.  He first arrived in Australia as an unauthorised boat arrival without any identity documents.  He arrived on 29 June 2012. 

2. On 23 October 2012, the Applicant applied to the Department of Immigration and Citizenship, as it then was (‘the Department’) for the visa.  In a statutory declaration accompanying his application, the Applicant claimed that:-

   a)he was arrested, detained for approximately 20 days and tortured by police in 2001, as part of a group of young Tamil men suspected of association with the Liberation Tigers of Tamil Eelam (‘LTTE’); 

   b)he attempted to flee to Italy, but was stopped in Egypt and deported back to Sri Lanka.  He fled again six months later, but was forced to return after three months as his visa expired;

   c)on his return to Sri Lanka, he married in 2002 and fled to his wife’s village in 2003;

   d)in 2007 he was detained for a day and beaten by police and was only released on the condition that he return to his own village, which he did in 2008;

   e)he fled to India again in 2009 after a Tamil family was murdered.  He believed the Sri Lankan Army was responsible for that murder.  He returned to Sri Lanka after 15 days in India to look after his family;

   f)he feared harm from the Sri Lankan police and army or paramilitary groups associated with the government, due to:-

   i)his Tamil ethnicity and Hindu religion;

   ii)their suspicion that he is associated with the LTTE;

   iii)his illegal departure from Sri Lanka;  and

   iv)having sought asylum in a western country.

3. The Applicant attended an interview with the Department on 26 February 2013 assisted by his representative.  By a decision dated 3 October 2013, the Minister, by his Delegate, refused to grant the visa. 

4. On 9 October 2013, the Applicant applied to the Tribunal for review of the Delegate’s decision.  Attached with that application was a copy of the letter from the Delegate notifying the Applicant of the decision and the Decision Record. 

5. By letter dated 6 February 2014, the Applicant’s representative made submissions to the Tribunal on the Applicant’s behalf, including commenting on the Delegate’s decision. 

6. By fax dated 4 April 2014, the Tribunal invited the Applicant to attend a hearing on 12 May 2014 at 2 pm to give evidence and present arguments relating to the issues arising in relation to the decision under review.  The invitation to appear before the Tribunal on 4 April 2014 set out the date, time and location of the hearing and noted that a Tamil interpreter would be available to assist the Applicant. 

7. By letter dated 9 May 2014, the Applicant’s representative advised the Tribunal the details of three further brothers of the Applicant who had each sought protection in the United Kingdom, each of whom is now a British citizen, as claimed by the Applicant.  That correspondence from BMA Lawyers said further:-

   “The Applicant instructs that since he got married to his wife, who is from Jaffna, in 2002, he has had no contact with his three brothers who are in the United Kingdom.  He instructs that his family (and particularly his brothers) did not agree to his marriage to his wife who was from Jaffna as they believed this would simply add to all the problems that the family had experienced in Sri Lanka.  The Applicant instructs that given he has not been in contact with his brothers for over 10 years, he did not disclose their information earlier.  The Applicant states that his brothers were however still in contact with the Applicant’s mother and younger brother. 

   The Applicant has realised the importance of being forthcoming in terms of all information regarding his family and experiences and has therefore requested that we inform the Tribunal of the contents of this letter prior to his hearing.”

8. The Applicant appeared before the Tribunal on 12 May 2014 with his representative and with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. 

9. Whilst the Applicant’s representative foreshadowed providing a post-hearing submission, no such submission was provided to the Tribunal.  Prior to the date of the Decision Record, being 19 August 2014, the representative of the Applicant had requested an extension of time to provide such further submission from 26 May 2014 to 13 June 2014.  The Tribunal, of its own motion, sought and obtained a copy of the post-interview submissions the Applicant’s representative provided to the Delegate which were not then held on the Department’s file.  On 19 August 2014, the Tribunal affirmed the decision of the Delegate not to grant the Applicant the visa and informed the Applicant of its decision by letter dated 21 August 2014.  The Tribunal’s findings are accurately summarised in paragraph 23 of the First Respondent’s submissions.  They are as follows:- 

   “(a) it accepted that the applicant has 3 brothers living in the United Kingdom, at least one who successfully claimed protection, and that Sri Lankan army officers may have sought money from the applicant’s family as they knew he had relatives overseas, however that did not amount to serious harm or significant harm: 

   (b) while it accepted that the applicant’s father had disappeared in 1991, and that the Sri Lankan army was suspected of being responsible, given he did not mention this in his statutory declaration, 23 years had passed since the incident, his father was not mentioned to him while he was detained in 2001, and he himself did not believe his 2001 detention was linked to his father’s disappearance, the Tribunal did not believe that there was a real risk, or a real chance, that by virtue of this alleged kidnapping, the applicant would be seriously harmed upon return to Sri Lanka:

   (c) while it accepted that the applicant was tortured during his 15-20 days in detention in 2001, and that this amounted to serious and significant harm, the Tribunal did not accept that this incident resulted in him having a well-founded fear of persecution now because:

   (i) at that time, the civil war was occurring, and there had been a fatal attack on Colombo’s airport;  and

   (ii) the actions of the Sri Lankan government indicate that they did not suspect him of being connected to LTTE.  The Tribunal made this finding on the presumption that the Sri Lankan government would not have issued him a Sri Lankan passport, and allowed him to travel to India soon after his detention, if they believed he was an LTTE supporter. 

   (d) while it accepted that the applicant was detained in Jaffna in 2007 for 1 day, that a gun was pointed to his head, and that he was hit 2 to 3 times, the Tribunal did not accept this represented a real risk or a real harm that the applicant would be persecuted if he returned.  The Tribunal considered the detention in 2007 was in relation to his non-registration and not to any imputed affiliation with LTTE: 

   (e) while it accepted that someone was killed in the applicant’s village in 2009, and that the applicant fled to India for safety, the Tribunal found that because he returned within 15 days, the applicant believed there was no longer a risk of harm:

   (f) it did not accept the claim that the applicant’s younger brother was detained in 2009 given that claim was not included in the applicant’s brother’s statement: 

   (g) it did not accept that persons had come looking for the applicant in 2011 and 2012:

   (h) while it accepted that the applicant’s son was the victim of an attempted kidnapping, the motivation of the kidnappers was unclear and may have been simply criminal.  In those circumstances, the Tribunal was not satisfied this incident gave rise to a real chance or real risk of harm:

   (i) it noted the applicant claimed, in a written submission, that he faced a real risk of significant harm because he originated from the north, but found that the applicant did not originate from the north, instead simply lived there for approximately 6 years.  It further did not accept that the applicant had been continually harassed by Sri Lankan authorities to the extent that it amounted to cruel and degrading treatment:

   (j) while it accepted that the Sri Lankan authorities would assume the applicant was a failed asylum seeker and that he would be questioned about his illegal departure, it did not accept this would amount to serious or significant harm.  This was based on the fact that when the applicant was previously returned to Sri Lanka from Egypt, he suffered no harm.  Further, the Tribunal did not accept that because this was his second departure, he would be treated more harshly: 

   (k) the applicant would not be perceived as falling into the category of people who might be at risk on return to Sri Lanka, which included:  persons suspected of having certain links with the LTTE, opposition politicians and political activists, some journalists and some human rights activists:

   (l) while the applicant would be questioned about the organiser and means of his illegal departure, this type of questioning did not amount to serious or significant harm:

   (m) while it accepted that the applicant might be prosecuted under the Immigrants and Emigrants Act of 1948, it would be very unlikely that the applicant would be imprisoned for this.  Rather, he would more likely be penalised with a fine which would most likely be between $41AUD and $816AUD and would not give rise to a real risk of significant harm.  The law in any event is a law of general application:

   (n) while it accepted that:

   (i) the applicant may be held in remand for a short period upon his return;

   (ii) this would occur in Sri Lankan jails that were poor and overcrowded;  and

   (iii) the applicant may therefore suffer discomfort,

   the Tribunal did not accept that this would give rise to a real risk that the applicant would suffer significant harm in the form of torture or cruel or inhumane or degrading treatment or punishment.  Further, the Tribunal found that there was no real risk that the applicant would be arbitrarily killed as the death penalty did not arise on the facts:

   (o) while it accepted that the applicant was in a vulnerable state, and had a strong subjective fear of returning to Sri Lanka, this subjective fear (probably due to previous ill-treatment) on the part of the applicant did not convert non-persecution into persecution.  For this reason, the tribunal was of the view that there was no objective basis for this fear:  and

   (p) considered cumulatively, the applicant’s claims did not give rise to:

   (i) a real chance of persecution for a Convention reason, and therefore the fear of persecution was not well-founded;  or

   (ii) a real risk that he would suffer significant harm.”

Consideration

1. There is no evidence before the Court that the Tribunal failed to afford the Applicant procedural fairness.

2. In the absence of any particulars, and noting that it is not the responsibility of this Court to formulate same for the Applicant, this ground is essentially meaningless. Nevertheless, the Court observes that the Tribunal satisfied its obligation to afford the Applicant a hearing by inviting him to a hearing under s.425 of the Migration Act 1958 (Cth) (‘the Act’). The Applicant attended that hearing with the assistance of his representative and an interpreter. During the course of that hearing the Tribunal noted that the Applicant presented as someone who was traumatised or mentally unwell. The Tribunal said further at paragraph 92 of its Decision Record:

   “However the Tribunal is not qualified to assess these matters.  The applicant said that he had been referred to Foundation House for specialist counselling but had not attended.  The applicant’s condition was raised with his agent who indicated that she would ensure that he was referred to the relevant services.  Unfortunately there is no material before the Tribunal as to any medical or psychological condition the applicant is suffering from.”  

3. Further, at paragraph 93 of the Decision Record:-

   “The ministerial guidelines relating to the Minister’s discretionary power under s.417 of the Act, set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ indicate persons with Unique or Exceptional Circumstances should be referred to him. This includes compassionate circumstances regarding a person’s age and/or health and/or psychological state such that failure to recognise them would result in irreparable harm and continuing hardship to the person. If medical evidence had been provided this case may have warranted referral but currently there is insufficient evidence to do so.”

4. There is nothing before the Tribunal on the hearing to suggest the Applicant was incapable of participating in the hearing or making his submissions and presenting evidence.  The Applicant was given and accepted a real and meaningful invitation to the hearing.[1]

   [1] Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553.

5. The content of the rules of procedural fairness depend on div.4 of Pt.7 of the Act. That division articulates the legislative regime applicable to the conduct of a review by the Tribunal. Section 422B states that Division 4 of Part 7 is “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters [it] deals with.”

6. Section 424A and its subsections were complied with by the Tribunal. The only information relied on by the Tribunal other than that put by the Applicant was independent country information. That information falls within the exception to s.424A identified in s.424A(3)(a) and, as such, it did not need to be put to the Applicant for comment.

7. The Applicant’s second ground of review, being that the Tribunal applied the wrong legal test, is also not made out on the evidence before the Court. In the absence of further and better particulars in respect of this ground, it is not possible for this Court to consider favourably the Applicant’s assertion.  Nevertheless, the Court considers the Tribunal discharged its duty to consider the Applicant’s claims and the integers of such claim and no errors arise on the face of the Tribunal’s Decision Record.

8. The Tribunal, in a considered manner, looked to the Applicant’s claims and accepted many of them whilst not accepting others.  Indeed, the decision was not one which made wholesale adverse credibility findings against the Applicant, rather the Tribunal accepted many of the Applicant’s claims with respect to past events, but concluded that those past events did not give rise to a well-founded fear of persecution or a real risk of significant harm.  The Tribunal was not otherwise obliged to consider unarticulated claims or claims which did not clearly arise from the material before it.[2]

   [2] NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) (2004) 219 ALR 27 at [48] – [49], [55] – [63].

9. The Tribunal set out and applied the correct legal framework in its decision, including in the assessment of the real risk threshold for complementary protection.[3] It otherwise did not fall into error.  The Tribunal found that the possibility of a short period of remand did not of itself constitute serious harm, particularly given the Tribunal’s express finding that the relevant law was one of general application not discriminatorily applied MIAC v WZAPN [2015] HCA 22. The Tribunal’s assessment that the conditions of Sri Lankan jails in which the Applicant might be remanded may give rise to discomfort to the Applicant, but that any such discomfort would not be intentionally inflicted, did not misstate the test for complementary protection.[4]

   [3] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

   [4] MZAGZ v Minister for Immigration & Anor [2015] FCCA 1702 at [26] – [31].

10. On the hearing before the Court this day, the Applicant was assisted by an interpreter in the Tamil (Sri Lankan) and English languages and was given an opportunity to make oral submissions in support of his application.  He was unable to do so, and when asked for particulars in respect of the two grounds set out in his application, was unable to provide any.  He simply said he did not know. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 28 October 2015