MZAPE v Minister for Immigration

[2016] FCCA 1405

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAPE v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1405

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal – application for a Protection (class XA) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.422B, 424A, 424A(1), 424A(3), 424AA, 474

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, (2007) 235 ALR 609

Applicant: MZAPE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2508 of 2014

Judgment of: Judge Hartnett

Hearing date: 12 May 2016

Delivered at: Melbourne

Delivered on: 12 May 2016

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Mr Hibbard

Solicitors for the Respondents: Clayton Utz

ORDERS

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

2. The application 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 2508 of 2014

MZAPE

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 11 December 2014 wherein the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it was) (‘the Tribunal’) made on 25 November 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant to the Applicant a Protection (class XA) visa (‘the visa’). 

2. The grounds of application are brief.  They are not particularised.  The lack of particularisation raises the issue of whether there is before the Court an arguable case.  The grounds are that the decision of the Tribunal:-

   “(a) is affected by an error of law; and

   (b) denied the applicant procedural fairness.”

3. The First Respondent filed a response dated 19 December 2014.  The First Respondent seeks dismissal of the application and that costs follow that event. 

4. The matter was first listed and proceeded before Registrar Burns on 18 March 2015.  The Court made orders by consent on that day which were as follows: 

   “1. Pursuant to rule 44.11(c) of the Federal Circuit Court Rules 2001 (Cth), a hearing under rule 44.12 be dispensed with and the application be listed for final hearing.

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

   a. an amended application, if any:

   b. a supplementary Court Book, if any; and

   c. written submissions.  

   3. On or before 14 days prior to the final hearing, the first respondent shall file and serve written submissions.

   4. The application be fixed for final hearing before Judge Jones on a date to be advised by the Court.

   5. Costs be reserved.”  

5. The Applicant filed no amended application and nor did the Applicant file any written submissions. 

6. The matter was first listed before Judge Jones for hearing on 1 April 2016 at 2.15 pm.  The proceedings were then adjourned further by administrative adjournment to a final hearing this day, 12 May 2016.  In the period from 11 December 2014 and the hearing this day the Applicant has been a litigant in person.  He has had a very significant period of time in which to obtain legal representation or pro bono representation.  The Court determined this day not to grant the Applicant a further adjournment of the proceedings to obtain such legal representation, as suggested by the Applicant, in circumstances where the First Respondent wished to proceed and there was no evidence before the Court going to the Applicant’s attempts and/or ability to obtain such representation in this lengthy period of time available to him.

7. At the commencement of the proceedings, the matter was stood down to enable the Sri Lankan interpreter present this day to translate to the Applicant the First Respondent’s outline of submissions.  Although the Applicant has had those submissions dated 18 March 2016 for a number of weeks now, the Applicant indicated to the Court that he had not had them translated to him.

8. There is before the Court otherwise the evidence as contained in the Court Book filed on 9 February 2015 by the First Respondent.  The Applicant was given an opportunity today to make oral submissions.  To the extent that he asserted he had some form of disability by virtue of him being a ‘boat arrival’ in Australia, the Court notes that no such matter was brought to the attention of the Tribunal and that the Applicant was represented before the Tribunal by his migration agent.

Background

1. The Applicant is a citizen of Sri Lanka.  On 30 July 2012, he arrived by boat in Australia without a visa.  On 18 December 2012, the Applicant applied for the visa.  On 6 August 2013 the Applicant’s then lawyer sent a submission to the Department of Immigration and Citizenship (‘the Department’).

2. The submission forwarded on behalf of the Applicant by his then lawyer summarised the basis on which the Applicant claimed to fear harm from the Sri Lankan authorities.  Those claims were, by virtue of his (a) being a Tamil, (b) having an imputed political opinion as an LTTE supporter and (c) being a failed asylum seeker.

3. On 3 October 2013, the delegate refused to grant the visa.  On 4 October 2013, the Applicant sought merits review of the delegate’s decision.  On 12 November 2014, the Applicant attended a hearing of the Tribunal to give evidence and present arguments in his case pursuant to the invitation to hearing issued to him by the Tribunal.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.  The Applicant was represented by his registered migration agent.  The Applicant provided a copy of the delegate’s decision to the Tribunal.  On 21 July 2014, in advance of the Tribunal hearing, the Tribunal had received submissions from the Applicant’s lawyer.

The Tribunal

1. By Decision Record of 25 November 2014, the Tribunal affirmed the delegate’s decision.

2. The Tribunal set out the Applicant’s claims in paragraph 47 of its Decision Record as follows:-

   “The applicant has claimed that he will be persecuted on return to Sri Lanka because of his Tamil ethnicity; his actual or imputed political opinion as being someone who is perceived a supporter of the LTTE, holding separatist views or supporting the renewal of hostilities against the Government of Sri Lanka; and membership of a particular social group, being a failed asylum seeker. The Tribunal noted that the applicant’s manner of departure from Sri Lanka, where he embarked on a boat journey from Sri Lanka to Australia, may also constitute a claim of protection.”

3. The Tribunal’s conclusions as to the Applicant’s claims are as accurately summarised in paragraph 9 of the First Respondent’s outline of submissions.  The Tribunal concluded that:-

   “9.1 the applicant did not face a real risk of serious or significant harm on account of his ethnicity. This was either because the harm that was feared did not rise to the level of serious or significant harm or there was not a real risk of the harm manifesting;

   9.2 there was not a real risk that he would be imputed to be a supporter of the LTTE. This was because the Tribunal rejected the applicant’s claim that his brother was an LTTE supporter and country information did not support the proposition that all Tamils are imputed to be LTTE supporters and suffer serious or significant harm for that reason;”

4. I note in paragraph 42 of its Decision Record the Tribunal said as follows:-

   “The Tribunal does not accept that the applicant, the applicant’s brother [or] any other member of his family have had an involvement with or provided support for the LTTE.  The Tribunal finds that the applicant has created this story to embellish his claims for protection.”

5. The Tribunal’s conclusions as to the Applicant’s claims are further summarised in the First Respondent’s outline of submissions in paragraph 9:-

   “9.3 The applicant did not face a real chance of serious or significant harm as a failed asylum seeker or for having departed the country illegally on the basis of country information;  and

   9.4 The applicant’s circumstances, considered independently and cumulatively, did not indicate he would face a real chance of persecution or significant harm in the reasonably foreseeable future for any reason.”

6. The Tribunal, whilst aware of the importance of adopting a reasonable approach in the finding of credibility, had serious concerns regarding the evidence of the Applicant. The Tribunal put to the Applicant its various concerns as to his evidence and questioned him as to particular matters.  For instance, why the Applicant did not previously raise the issue that his brother had been involved with the LTTE.

7. The Tribunal also expressed concerns it had regarding documentation provided by the Applicant at the hearing as set out in paragraphs 44 to 46 of its Decision Record.  The documentation provided by the Applicant was a letter to the Tribunal dated 12 September 2013 written by a former member of parliament from a Tamil political party.  The Tribunal considered that the letter of the parliamentarian had been written with a view to embellish the Applicant’s claims and did not reflect the actual circumstances facing the Applicant on return to Sri Lanka.  The Tribunal considered the Applicant’s own evidence in this regard to be more accurate being that he and his family have not had any difficulty arising from any political involvement in Sri Lanka.  The Tribunal placed no weight on the paragraph in the letter as provided by the ex-parliamentarian regarding threats to the Applicant and his family due to their involvement in politics.  The Decision Record discloses that the Tribunal discussed many of the issues that it had difficulty accepting with the Applicant, and came to conclusions that were open to it on the evidence before it.

Consideration

1. The Court only has power to grant the relief sought in the application if the decision of the Tribunal is not a privative clause decision within the meaning of s.474 of Migration Act 1958 (Cth) (‘the Act’) and is affected by jurisdictional error. 

2. The Applicant does not establish that jurisdictional error attends to the decision of the Tribunal.  The Tribunal dealt with each and every of the claims made by the Applicant.  Its findings were open on the evidence before it[1] and were rationally and reasonably made.[2]

   [1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

   [2] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.

3. There is nothing in the Tribunal’s reasons, nor in any of the evidentiary material which is before the Court that supports a finding that the Tribunal made an error of law in considering the Applicant’s case and making its decision.

4. The allegation that the Tribunal failed to afford the Applicant procedural fairness was not supported by any particularisation.  On the hearing this day, the Applicant was unable to point to how it was that the Tribunal failed to afford him procedural fairness. 

5. Under s.422B of the Act, Part 7 Division 4 of the Act is taken to be “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.

6. The Tribunal clearly invited the Applicant to appear before it to give evidence and present arguments, and the Applicant accepted that invitation and appeared before the Tribunal.  Issues relevant to the determination of the Applicant’s claim, and material adverse to the Applicant were raised with the Applicant during the Tribunal’s hearing. 

7. There is nothing before the Court to suggest that the Tribunal failed to properly disclose information within ss.424AA and 424A. In the course of reaching its decision, the Tribunal relied solely on information given by the Applicant during the course of his visa application or the Tribunal’s proceeding (both orally and in writing) and independent country information not specifically relating to the Applicant. These types of information fall within the exception specified in s.424A(3) of the Act and therefore are not subject to the particular requirements of s.424A(1) of the Act. Further, as submitted by Counsel for the First Respondent, information for the purposes of s.424 is concerned with knowledge of a fact or circumstance communicated to or received by the Tribunal[3] and does not include the Tribunal’s subjective appraisal or use of the evidence that is before it, nor conclusions that it draws from that evidence.

   [3] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, (2007) 235 ALR 609.

8. The Applicant, on this hearing, sought merits review. That is not a function of the Court.  The application is without merit and must be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 9 June 2016