MZAMH v Minister for Immigration
[2015] FCCA 3353
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAMH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3353 |
| Catchwords: MIGRATION – Judicial review of determination of Refugee Review Tribunal – whether Tribunal failed to consider an integer of the applicant’s claim – whether Tribunal took into account an irrelevant consideration. |
| Legislation: Migration Act 1958 (Cth) |
| Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 MZYSV v Minister for Immigration at Border Protection & Anor[2012] FCA 1353 |
| Applicant: | MZAMH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2107 of 2014 |
| Judgment of: | Judge McGuire |
| Hearing date: | 3 September 2015 |
| Date of Last Submission: | 3 September 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sim |
| Solicitors for the Applicant: | Mendis & Gibson Lawyers |
| Counsel for the Respondent: | Ms Symons |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
That the application for judicial review filed 17 October 2014 be dismissed.
That the applicant pay the first respondent’s costs set in a quantum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2107 of 2014
| MZAMH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a determination of the Refugee Review Tribunal (as it then was) (“the Tribunal”) affirming a decision of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa (“the visa”).
Both parties are represented before me and have provided helpful written submissions.
Background:
This matter has something of a convoluted history. Suffice to observe that a previous decision of the Federal Magistrates Court (as it then was) was subject to a successful appeal to Justice Bromberg in the Federal Court and remitted to the Tribunal.
The applicant is from Sri Lanka. He first came to Australia holding a TU 573 (higher education sector) visa in May 2008. On 8 September 2010 he applied for the protection visa. He claimed to be an active member of the opposition United Nation Party (“UNP”).
The applicant claimed that he would be harmed on return to Sri Lanka by reason of his membership of UNP and, relevantly, that his relationship with his father would impute in him anti‑regime political opinion.
The applicant claimed that his father had been a childhood friend of the presidential candidate, General Fonseka, and that in 2010 whilst visiting Sri Lanka, his father had been approached by General Fonseka to assist in his presidential campaign. The applicant claimed that his father had actively participated in the campaign.
The applicant claimed that General Fonseka lost the election and he was then taken into custody by government troops, together with a number of his supporters and that the applicant’s father was followed by government supporters, being a circumstance which had prompted his father’s secret departure from Sri Lanka in 2010.
The Tribunal’s Decision:
The Tribunal accepted the applicant to be a supporter of UNP but did not accept him to have been an active member of the party in Sri Lanka.
It is clear that the Tribunal’s decision is based, to a large degree, on its negative credibility findings in respect of the applicant and his father who both gave evidence.
Specifically, in respect of the applicant’s father, the Tribunal found:
i)that he was a former colleague of General Fonseka in the Sri Lankan Army;[1]
ii)that General Fonseka was a presidential candidate and had been detained following his unsuccessful campaign;[2]
iii)that the applicant’s father and General Fonseka were school and social friends who later resumed their friendship when serving together as officers in the Sri Lankan Army;[3]
iv)that the applicant’s father was a supporter of the UNP and General Fonseka’s 2010 election campaign;
v)that the applicant’s father was not otherwise active in Sri Lankan politics after his retirement from the army, noting the retirement in July 2009 and his arrival in Australia on 14 October 2009;[4]
vi)that the applicant’s father’s return to Sri Lanka was not because of the election but due to the expiration of his visa and that, in any event, the Tribunal did not accept that, having returned to Sri Lanka, the applicant’s father was involved in any capacity in General Fonseka’s 2010 election campaign.[5]
[1] Refugee Review Tribunal Reasons, 25 September 2014, at [39]
[2] Refugee Review Tribunal Reasons, 25 September 2014, at [41-42].
[3] Refugee Review Tribunal Reasons, 25 September 2014, at [41-43]
[4] Refugee Review Tribunal Reasons, 25 September 2014, at [44].
[5] Refugee Review Tribunal Reasons, 25 September 2014, at [50].
Application before this Court.
The applicant’s amended application provides two grounds of complaint being: [6]
1. The tribunal made a jurisdictional error in the sense that it did not give relevant consideration to the applicant’s claim to the following:
a) Tribunal did not consider and/or failed to understand the close connection between the Applicant’s father and General Sarath Fonseka.
b) The Tribunal did not consider the applicant as a member of a particular social group, namely being a son of the former Colonel of Sri Lanka who is a strong supporter of the defeated general.
2. The Refugee Review Tribunal made a jurisdictional error in regards to giving irrelevant consideration that his father was not detained arrested or otherwise subject to any formal investigative or legal proceedings in Sri Lanka during the political campaign and after General Sarath Fonseka’s arrest.
[6] MZYSV v Minister for Immigration at Border Protection & Anor[2012] FCA 1353at 17
Ground 1.
Significantly, in respect of ground 1, Bromberg J remitted the matter to the Tribunal on the following bases;
[17] It is sufficiently apparent from [22] of the Tribunal’s reasons that the appellant claimed that his father and General Fonseka were good friends. That claim was first made in the appellant’s application for a protection visa and was supported by photographs and other material. The appellant also claimed that his father had campaigned for General Fonseka in the Presidential election. Each of those matters were relied upon for the appellant’s expressed fear that the perceived sins of the father would be visited upon him, the eldest son.
At [20], [22] & [25] of his Honour’s reasons:
[20] However, the other basis for the father’s profile, that of his friendship with General Fonseka, is not a matter that the tribunal’s reasons suggest was appreciated by the tribunal as an integer of the appellant’s claim.
[22] Having either accepted or at least not rejected the appellant’s claim that the father and the General were close friends, it was incumbent upon the Tribunal to consider whether that friendship was a basis for a well‑founded fear of persecution. Such a finding could have supported such a fear and done so irrespective of the Tribunal’s finding that the father had not been active in the General’s campaign. It needed to be dealt with but in my view was not. The Minister was unable to identify that integer being expressly dealt with. Read in context the first sentence of [92] is dealing with the father not being a “supporter” of the General in the sense of not being an activist in the General’s campaign. The references to “profile” at the end of [92] and to “membership of his family” in [94] are too general to support an inference that the friendship between the appellant’s father and General Fonseka was there being dealt with by the Tribunal.
[25] It was for the Tribunal to determine whether there was a close relationship or whether the father was merely “known to” the General. The Federal Magistrate should have, but did not, identify the failure of the Tribunal to make such a finding in the context of his failure to deal with the appellant’s claim based upon the personal relationship between the father and the General. By doing that, the Federal Magistrate erred.
The applicant here argues that the Tribunal has fallen into the same error in not engaging the second limb of the applicant’s claim being the extent to which the applicant’s father’s friendship and relationship with General Fonseka may have imputed political opinion to fall upon the applicant himself.
It is well established that the failure to deal with an integer of an applicant’s claim will cause a Tribunal to fall into jurisdictional error.[7]
[7] Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
The applicant argues that the Tribunal recognised the childhood relationship between the applicant’s father and General Fonseka together with the professional military association but that there was no active engagement in the Tribunal of the applicant’s claim that the extent of their association may amount to a genuine fear of persecution in the applicant. Rather, Counsel argues that the focus of the Tribunal’s decision and reasons is on the involvement or lack thereof by the applicant’s father in the election campaign and hence falls into the same error identified by Bromberg J.
Put simply, it is argued that the Tribunal did not independently consider the second limb of the applicant’s claim in respect of his father’s relationship with General Fonseka. In this respect, Counsel refers the Court to [52] of the Tribunal’s reasons, which state:
[52] Having concluded that the applicant’s father was not active in General Fonseka’s election campaign in January 2010, the Tribunal has considered whether his personal relationship with General Fonseka is such as would cause he or the applicant imputed with an anti‑regime political opinion and concludes that it is not. In making this assessment the Tribunal notes that the applicant’s father retired from the Sir Lankan military in July 2009 and the applicant has consistently given evidence that prior to this time, his father was not permitted to be publicly involved in political activities as he was a serving member of the Sri Lankan military. The applicant’s father travelled to Australia in October 2009 where he remained until 13 January 2010 before his return to Sri Lanka. For the reasons set out earlier in this decision, the Tribunal has not accepted that the applicant’s father returned to Sri Lanka because his wife in Sri Lanka was contacted by General Fonseka’s secretary asking that the applicant’s father return and assist in his election campaign, nor has it accepted that he played any role in that election campaign once he did return. The applicant gave evidence at the third Tribunal hearing that neither he nor his father had sought to contact General Fonseka since his release from detention in May 2012. On the evidence before it the Tribunal does not accept that the applicant’s father has had any direct contact with General Fonseka since his retirement from the Sri Lankan military in July 2009.
It is first appropriate to consider the applicant’s claims set out in his Statement in support of his application where he says:[8]
During my studies in Australia, my father first time visited me 14th October 2009. He spent few weeks with me and left Australia in 13th January 2010. During my father’s absence from Sri Lanka Private Secretary to General Sarath Fonseka have contacted my mother and has inquired about my father. General Sarath Fonseka was the common candidate of the opposition in Presidential Election 2010. According to my knowledge General Sarath Fonseka was classmate of my father and a good friend of too. Because of that my father worked as an active member in his election campaign after leaving soon from Australia. According to my knowledge my father actively participated in General Fonseka’s political campaign in Vavuniya District as well as Ambalangoda Electorate.
Unfortunately, General Fonseka lost the Presidential election. After a few days from the election General Fonseka was taken into custody by Government Troops. Then my father also followed by Govrnment (sic) Supporters. He and his family was in danger and secretly he departed from Sri Lanka and came to Australia again 26th May 2010. My father and Mother already applied for Protection Visa in Australia.
After finishing my studies I should depart from Australia before 11th September 2010. But if I leave from Australia my life will also in danger. In Sri Lanka if they would not be able to catch the main guy they will kill their son or family members. It has already happen for some political supporters and their family in Sri Lanka. And they know I was an active member in the same political party when I was in Sri Lanka. In that case it is a real life threat for me.
[8] Court Book, filed 2 February 2015, at pp.32-33
In considering the error identified by Bromberg J in the first Tribunal and the applicant’s claim that it is repeated in the second Tribunal, being effectively that the two limbs of the applicant’s argument are conflated in the consideration process, I accept the submission of Counsel for the first respondent that the applicant himself puts his claim in this way being that there is a strong connection between the father’s friendship of the General and the political relationship. Nevertheless, I accept the relevant distinction in that it was for the Tribunal to consider, independently of political activity, the alleged historical close relationship between the father and the General.
It is clear that the Tribunal recognised the error of its predecessor. At [6] of its reasons it notes:
[6] The applicant sought a review of the Tribunal’s decision from the Federal Circuit Court which by judgment dated 14 August 2012 dismissed the application for judicial review. On 20 November 2012 the Federal Court of Australia set aside the orders made by the Federal Circuit Court, ordering that the Tribunal’s decision dated 11 November 2011 be quashed and the matter remitted back to the Tribunal to be heard and determined according to law. In its reasons for judgment the Federal Court held that the Tribunal fell into jurisdictional error by failing to deal with one of the claimed bases for the appellant’s fear of persecution. The Court held that while the Tribunal clearly dealt with and rejected the claimed active involvement of the applicant’s father in General Fonseka’s campaign, it failed to appreciate the other basis for the applicant’s father’s profile, being that of his friendship with General Fonseka.
It is true that the relationship between the father and General Fonseka appears under the heading above [39] of the reasons, “the political activities of the applicant’s father in Sri Lanka”. However, the nature of the relationship between the two is set out in the findings at [42-43] as follows:
[42] The Tribunal accepts that General Fonseka is known to the applicant’s father and that they were both from the city of Ambalangoda in Western Province. The Tribunal accepts that during their school years they were friends, attending the same primary and secondary school, playing cricket together and attending cadets together. The Tribunal accepts the applicant’s father’s evidence that from year 9 they were in different classes and that from about year 10 General Fonseka went away to a different college, but that when General Fonseka returned to Ambalangoda their friendship resumed. The Tribunal accepts the applicant’s evidence that he met General Fonseka on a couple of occasions when the applicant was young.
[43] The Tribunal accepts that as adults the applicant’s father and General Fonseka were also known to each other as long-serving officers of the Sri Lankan army, that they served together in Vavuniya and other places during the course of their long military careers and that for a period General Fonseka was the applicant’s father’s brigade commander… The Tribunal accepts the applicant’s father’s evidence that he had a cordial relationship with General Fonseka during his period of commission. The Tribunal further accepts that the applicant’s father, being himself a retired member of the Sri Lankan military and enjoying a cordial relationship with General Fonseka, was a supporter of the UNP and General Fonseka’s 2010 presidential campaign.
The operative paragraphs in respect of the issue before me are [52] and [54] of the Tribunal’s reasons. Consequently, both Counsel refer me to and rely upon [52] of the Tribunal’s reasons. Counsel for the first respondent asks however that [52] be read together with [54]. They are set out as follows.
[52] Having concluded that the applicant’s father was not active in General Fonseka’s election campaign in January 2010, the Tribunal has considered whether his personal relationship with General Fonseka is such as would cause he or the applicant imputed with an anti‑regime political opinion and concludes that it is not. In making this assessment the Tribunal notes that the applicant’s father retired from the Sir Lankan military in July 2009 and the applicant has consistently given evidence that prior to this time, his father was not permitted to be publicly involved in political activities as he was a serving member of the Sri Lankan military. The applicant’s father travelled to Australia in October 2009 where he remained until 13 January 2010 before his return to Sri Lanka. For the reasons set out earlier in this decision, the Tribunal has not accepted that the applicant’s father returned to Sri Lanka because his wife in Sri Lanka was contacted by General Fonseka’s secretary asking that the applicant’s father return and assist in his election campaign, nor has it accepted that he played any role in that election campaign once he did return. The applicant gave evidence at the third Tribunal hearing that neither he nor his father had sought to contact General Fonseka since his release from detention in May 2012. On the evidence before it the Tribunal does not accept that the applicant’s father has had any direct contact with General Fonseka since his retirement from the Sri Lankan military in July 2009.
[54] In all of these circumstances (my emphasis) the Tribunal does not accept that the applicant’s father had a close personal relationship with General Fonseka at the time of the 2010 Presidential Election as claimed, rather the Tribunal finds that while they may have a had a personal friendship during their childhood, their relationship during their adult years was in the nature of a cordial professional relationship.
These are factual findings properly the jurisdiction of the Tribunal and open to it to make a finding. Such findings of fact deal with the two limbs of ground 1 of the complaint. I am satisfied that the Tribunal recognised the distinctive claim of the applicant to fear harm as a result of his father’s personal relationship with General Fonseka. I am equally satisfied that the Tribunal addressed the nature of that personal relationship and particularly in paragraphs [52-54]. Whilst there is a connection in the consideration between the personal relationship between the two men and the General’s political activity, this is understandable due to the conflated nature of the applicant’s claim. Nevertheless, I am satisfied that the Tribunal has put its mind independently to the issue of the relationship between the two men as evidenced above. As such, the premise of the applicant’s claim fails by reason of the finding in [54]. I find no merit to ground 1 of the application.
Ground 2
The applicant argues that the Tribunal took into account an irrelevant consideration namely a finding that the applicant’s father was not detained, arrested or interrogated following the General’s unsuccessful election campaign when the General himself and other supporters were detained.
The applicant says that the Tribunal is importing a requirement that for the applicant to have a well-founded fear then his father must be arrested, detained or otherwise have his rights impinged or involved the necessary involvement of non-State actors when the Tribunal should have considered the question of whether the Sri Lankan authorities were unable or unwilling to provide protection to an applicant holding political opinion or membership of a particular social group.
At [34] of its reasons the Tribunal says:
[34] The Tribunal accepts that the security situation in Sri Lanka is at times unstable and that this is exacerbated during election periods. The Tribunal further accepts that opposition election candidates and their supporters are on occasion subjected to harassment and violence that is politically motivated and that the Sri Lankan police may be perpetrators of that conduct and/or withhold protection from opposition politicians and their supporters. However given the Tribunal’s findings about the applicant’s own political activity set out above, the Tribunal does not accept there to be a real chance that he will be targeted for serious harm amounting to persecution for any reason relating to his own political beliefs or activities if he returns to Sri Lanka now or in the reasonably foreseeable future, rather the Tribunal considers that chance to be remote.
The Tribunal here has regard to country information placed before it by the applicant. I am not satisfied that the Tribunal was importing such a requirement. These matters were raised by the applicant in statements in support of the visa application.[9] The Tribunal did not accept the applicant’s father to be in the position of the General on his supporters post the election. This was information raised by the applicant in support of his claim and therefore relevant. Secondly, this ground deals with the country information put before the Tribunal by the applicant as to the unstable security situation in Sri Lanka.[10] The Tribunal notes that opposition electoral candidates and supporters can be subjected to harassment and violence that is politically motivated that police may be the perpetrators. However [34] continues:
Given the Tribunal’s findings about the applicant’s own political activities set out above, the Tribunal does not accept there to be a real chance that he will be targeted for serious harm amounting to persecution for any reason relating to his own political beliefs or activities.
[9] Court Book, filed 2 February 2015, at p.33.
[10] Refugee Review Tribunal Reasons, 25 September 2014, at [34].
The operative part of [36] therefore is the finding that the applicant would not be affected by the political instability and hence does not require consideration as to whether or not he needs or would be afforded state protection.
I am not satisfied that ground 2 of the complaint has been made out.
Conclusion
There being no merit to either ground of complaint, the application is dismissed with an order for costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 21 December 2015
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