MZAQW v Minister for Immigration

[2016] FCCA 3166

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAQW v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3166

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: MZAQW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 78 of 2015

Judgment of: Judge Riethmuller

Hearing date: 14 November 2016

Date of Last Submission: 14 November 2016

Delivered at: Melbourne

Delivered on: 14 November 2016

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Ms Symons

Solicitors for the First Respondent: Clayton Utz

ORDERS

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

2. The application for judicial review be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 78 of 2015

MZAQW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore)

1. This is an application for judicial review of a decision made by the Refugee Review Tribunal, as it was then called, on 23 December 2014. 

2. The applicant is a citizen of Sri Lanka and of Tamil ethnicity.  The applicant came to Australia in June 2012 and applied for a protection visa on 3 December 2012.  In September 2013 a delegate of the Minister refused to grant a protection visa.  The applicant then applied to the Tribunal for a review of that decision. 

3. The applicant attended a hearing on 18 November 2014.  At the hearing the applicant was represented and assisted by a Tamil interpreter.  The hearing lasted for three hours.  The Tribunal affirmed the decision of the delegate in December 2014. 

3A. The applicant then applied for judicial review of the Tribunal’s decision.  The applicant’s claims before the Tribunal were primarily focused upon an incident where he was assaulted on the beach as a fisherman.  The applicant said the assault was perpetrated by three Sinhalese men.  The Tribunal accepted that the assault occurred (see paragraph [38] and following of the decision). The Tribunal also accepted that when the Applicant returned to the beach later in the day some of his property was stolen. 

1. The applicant explained that he had made a complaint to the police, however, he had the impression that the police were either not interested or conspiring with the attackers.  The Applicant said that he saw the vehicle that his attackers had been in leaving a side street from the police station.  The applicant also said that in the evening men came to his house seeking details of his identity from his wife.  The Tribunal did not accept this part of the applicant’s version of events.  The Tribunal doubted that the men would have known where he lived.  The Tribunal did not accept that the men who assaulted him would have had any ongoing interest in him.  The Tribunal did not accept that the police were conspiring with the attackers.

2. When considering the evidence, the Tribunal had careful regard to the various matters that might affect the credibility of a person giving evidence when in the situation of the applicant.  They refer to these factors at paragraphs [32] to [37] of the decision.  The substance of the Tribunal’s finding was that they accepted the Applicant had been assaulted, but were not persuaded that the other events took place, nor that he was at risk of serious harm.  The applicant’s grounds for review were as follows:

   1. Some unknown peoples who attacked me in srilanka but even if I said that to immigration of deparment, they didn’t believe that.

   2. I said to srilankan police about my problems and they didn’t care my application, I sain in Australian Government they didn’t believe that too.

   3. Some unknown people’s came to my house and they took my details from my wife (my id card number/Birth certificate/my Telephone number) but I said about that to immigration of department and they didn’t believe that stories.

3. Each of these grounds seeks to challenge the merits of the finding by the Tribunal.   Whilst the applicant does not agree with the Tribunal’s findings, it appears to me that those findings were open to the Tribunal on the material before it. 

4. I explored with the applicant whether he had complaints about the hearing process.  He told me that he did not receive an opportunity to tell the Tribunal member things about his wife or marriage or parents.  It does not appear that these matters directly affected the decision the Tribunal had to make.  It does seem clear that the applicant had an opportunity to tell the Tribunal about the relevant events. 

5. The Tribunal also went on to consider alternative bases for the applicant’s claim.  The Tribunal member considered whether he may face a real risk of serious harm as a Tamil or a Tamil fisherman or because of political opinion, the Tribunal said:

   59. The applicant has not had any previous involvement with the authorities, and has not claimed to have been involved in any way with the LTTE. The Tribunal does not accept that simply being a Tamil means that the applicant will face threats of harm in Sri Lanka or, that all Tamils are automatically assumed to be LTTE supporters, this is not something that is identified by the UNHCR or other entities as a risk factor in their lists, although it is noted that the lists are not exhaustive. The applicant is from the Uddapu region, a location in Sri Lanka that was under the control of the Sri Lankan authorities for the duration of the civil war. The applicant has not had issues with the authorities in the past, and the Tribunal does not consider that the applicant faces a real chance or a real risk of being harmed for reasons of his ethnicity in the future.

   60. The Tribunal further does not accept that because the applicant is a Tamil he will be imputed with an anti-Government opinion or LTTE sympathies. The applicant states that he believes in Tamil independence, but has not been involved in any independent activities that would lead him to be at risk of any harm from the authorities. The applicant has not expressed any political opinions that would lead him to have concerns for his safety; he has not claimed to have provided support or sympathy for the LTTE; and the applicant has not claimed that he has any political opinion that would be actually or imputed to be critical of the authorities.

   61. The applicant has stated that he feels that Sinhalese receive preferential treatment to Tamils, and there is evidence that a level of discrimination exists. The treatment of the applicant by the police in the aftermath of his complaint is an example of an attitude of the Sinhalese towards a person of Tamil ethnicity. The applicant however has resided in a town that is predominantly Tamil in its ethnic makeup, has lived and worked in that location for his entire life until coming to Australia. The applicant made his living as a fisherman, earning enough money to live on. The applicant's own evidence contradicts his claim that as a Tamil fisherman he faced ongoing difficulties, he was able to make a living in his work, not for an extravagant lifestyle, but one that the applicant described as 'enough for us'. The Tribunal considers that on return to Sri Lanka he will be able to return to the employment that he has had for a significant proportion of his life, fishing, and support his family in this way. The Tribunal does not consider that the mistreatment that the applicant faces as a Tamil in his community, or as a Tamil fisherman, is serious harm, or significant harm as defined.

   62. The Tribunal finds that the applicant does not have a real chance of serious harm for the convention reasons of race or political opinion, for membership of a particular social group of Tamil fishermen. The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons, now or in the reasonably foreseeable future.

6. The Tribunal also considered, whether he faced a real risk of serious harm if it became known that he was a failed asylum seeker, or because he had departed from Sri Lanka illegally.  The Tribunal did not accept these bases for his claim. 

7. As a result, the Tribunal rejected his claim both on a convention basis and pursuant to section 36(2)(aa).

8. On the material before me, I am not able to identify an error of law or procedure by the Tribunal.  In these circumstances, I must therefore dismiss the application.

   [Further argument ensued]

9. In this matter, the applicant has been unsuccessful and costs orders usually follow the event.  There is nothing about this case that takes it outside the usual principle.  The Minister seeks the scale fee of $7,206, which I find is reasonable given the nature of this case.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 8 December 2016