MZARG v Minister for Immigration
[2017] FCCA 2108
•28 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZARG v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2108 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c) |
| Cases cited: Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 |
| Applicant: | MZARG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 181 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 28 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 28 August 2017 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor for the First Respondent: | Mr Cunynghame |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 181 of 2015
| MZARG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application for judicial review of a decision of what was then the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (‘the Tribunal’) made 16 January 2015 wherein the Tribunal affirmed a decision of a delegate of the Minister of Immigration and Border Protection (‘the Delegate’) not to grant to the Applicant a protection (Class XA) visa (‘the visa’).
The grounds of application in the application filed on 3 February 2015 are as follows:-
“(1) The Refugee Review Tribunal did not offer me procedural fairness.
(2) The Refugee Review Tribunal applied the wrong legal test.”
As can be seen from the above grounds, they comprise bare assertions with no particularisation of the grounds as stated. The Applicant was given an opportunity to file and serve an amended application by orders made by the Court on 3 July 2017. The Applicant has not filed, nor served, any amended application and proceeds with his originating application.
The orders of 3 July 2017 were orders made consequent upon an application in a case filed by the Applicant wherein the Applicant sought reinstatement of the proceedings. Earlier orders of the Court, made 22 September 2016, dismissed the application filed on 7 January 2015 for non-appearance and pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).
The orders made on 3 July 2017 reinstated the proceedings and required the Applicant to file and serve an amended application and written submissions, the submissions being within 28 days of the making of the orders. The Applicant has not filed and served any written submissions.
On 3 July 2017 the matter was listed for final hearing this day. The Applicant appeared in person and was assisted by an interpreter fluent in the Tamil (Sri Lankan dialect) and English languages. The application is brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (‘the Act’). To be successful in his application, the Applicant must show jurisdictional error in the Tribunal’s decision.[1]
[1] Plaintiff S157/2002 v Commonwealth [2003] HCA 2.
The Respondent filed a response on 12 February 2015 stating that the application for judicial review did not establish any jurisdictional error in the decision of the Refugee Review Tribunal dated 16 January 2015 and the First Respondent seeks dismissal of the application. The First Respondent relies upon the response filed, written submissions which were filed on 16 September 2015, the evidence contained in the Court book filed on 11 May 2015 and supplementary Court book filed on 15 September 2016.
History
The Applicant is a citizen of Sri Lanka. He is of Tamil ethnicity. He was born and lived in Udappu but spent up to six months each year in Mullaitivu district in the north-east of Sri Lanka. The Applicant, it was accepted by the Tribunal, is married and has two children. His family live in Udappu, as do his parents and his wife’s younger brother. His sister is a permanent resident of the United Kingdom and his younger brother was, at the time of the Tribunal hearing, in Australia.
The Applicant claimed, and the Tribunal accepted, that the Applicant left Sri Lanka in 1995 and travelled via Greece, Italy and Holland to Germany where he applied for asylum. After his application for protection was rejected, he entered Belgium illegally and arrived unlawfully in the United Kingdom in 1999 where he, again, applied for asylum. He was permitted to remain in the UK until a decision was made on his asylum application, but in 2004 he decided to leave and return to Sri Lanka.
The Applicant also claimed, and the Tribunal accepted, that the Applicant had no problems in Sri Lanka before his departure in 1995 and that he just wished to leave the country. He decided to return to Sri Lanka in 2004 because there were no problems in his area and his mother was ill. He claimed also, and the Tribunal accepted, that he was issued an emergency passport by the High Commissioner of Sri Lanka in the UK and when he arrived in Sri Lanka, he was questioned at the airport about where he had been and why he was returning, and allowed to leave without any problems.
The Applicant arrived in Australia as an irregular maritime arrival on 31 May 2012 and he participated in an entry interview on 18 and 20 July 2012. On 9 September 2012, the Applicant applied for a protection visa to the Department of Immigration and Citizenship (as it then was) (‘the Department’) after the Minister lifted the bar under s 46A(2) of the Act. He appointed a migration agent to represent him. On 13 September 2012, the Applicant attended a protection visa interview with the Department.
In a decision dated 4 December 2012, a delegate of the Minister refused to grant the Applicant a protection visa, and the Applicant applied to the Tribunal for review of the delegate’s decision on 19 December 2012. In a decision dated 6 March 2013, the Tribunal, differently constituted, affirmed the decision of the delegate to refuse to grant the Applicant a protection visa. On 30 May 2014, Judge O’Dwyer of this Court made orders by consent quashing the decision of the first Tribunal and remitting the application for review for reconsideration by the Tribunal according to law.
On 30 June 2014, the Tribunal wrote to the Applicant to confirm that his application for review would be reconsidered. On 30 September 2014, the Tribunal wrote to the Applicant inviting him to appear at a hearing before it scheduled for 18 December 2014. On 21 October 2014 and 5 November 2014, the Applicant provided documents to the Tribunal. On 18 December 2014, the Applicant appeared at a hearing before the Tribunal with the assistance of a Tamil interpreter.
Applicant’s claims
The Applicant’s claims are accurately set out in the written submissions of the First Respondent and adopted here. The Applicant claimed to be a fisherman from Udappu and to fear harm in Sri Lanka from the authorities for reason of:-
a)his Tamil race;
b)his membership of particular social groups comprising Sri Lankan Tamils and Tamils from the north or east of Sri Lanka;
c)his real and imputed political opinion in support of the Liberation of Tamil Tigers Eelam (‘LTTE’) arising from his race and his former residence in a predominantly Tamil region;
d)his membership of a particular social group of Tamils who fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia.
In summary, the Applicant claimed that:-
a)prior to 2004, the Applicant did not encounter difficulties with the Sri Lankan authorities. However, in May 2004, the Criminal Investigation Department (CID) came to his house and questioned him about leaving Sri Lanka illegally in 1995 and his involvement in raising funds for the LTTE whilst in London. He was then detained by the CID. Demands were made that he pay CID officers money and only released when his father paid;
b)in November 2004, the CID came to his house again and demanded payment of the balance of the money they had requested from him previously. He was again detained and held until his wife and father found the money for his release;
c)in 2006, he started a partnership with a friend to set up a prawn farm in Udappu;
d)in September 2008, people came to the prawn farm looking for his partner and three days later his partner was found dead. Later that month, the army and Sinhalese fisherman expropriated his prawn farm;
e)he left Udappu and went to the town of Mullaitivu where he fished. He subsequently returned to Udappu and commenced fishing with his father;
f)between 2010 and 2012, the CID, army and police came to his home six times harassing him;
g)in February 2012, the CID came to his house and confiscated his new passport. They questioned his wife and said they were going to kill the Applicant. As a result of these threats, he feared for his life and decided to leave Sri Lanka.
Tribunal decision
The Tribunal found that the Applicant’s evidence had been largely consistent and that he had been a credible witness with respect to “the greater part of his claims”.[2] However, the Tribunal was troubled by inconsistencies in the Applicant’s claims relating to the events of 2004, as outlined by the Applicant, and significant inconsistencies in his claims concerning visits to his house by the CID, especially those claimed to have taken place in February 2012 and 2014.
[2] Decision Record dated 16 January 2015 at paragraph 30.
The Tribunal set out in some considered detail where it found difficulties in reconciling some of the conflicting information provided to it by the Applicant. The claims which involved these major, rather than minor inconsistences, as classified by the Tribunal, the Tribunal found were embellished to some degree and not all were credible or reliable.
The Prawn Farm Incident
The Tribunal accepted that the Applicant ran a prawn farming business with his friend and business partner, Arul, from 2006 to 2008. The Tribunal accepted that Arul was shot and killed as claimed by the Applicant. It also accepted that people came to the Applicant’s home looking for him after the death of his business partner. However, the Tribunal did not accept that Arul was suspected of being connected to the LTTE or killed for that reason. The Tribunal did not accept that the death of Arul and the subsequent visit by unknown persons to the Applicant’s home were connected to the events of 2004.
The Tribunal found on the evidence before it there was not a real chance that the Applicant would be seriously harmed for reason of the prawn farm incident or his connection to his former business partner, nor that the Applicant faced a real risk of significant harm for the same reasons.
Harassment by the CID
The 2004 incidents
The Tribunal had “some reservations”,[3] but accepted that the events claimed by the Applicant in relation to his first interaction with the CID had occurred. However, it did not accept his claim at the hearing that he was beaten with the back of a gun.
[3] Decision Record dated 16 January 2015 at paragraph 36.
The Tribunal did not accept the Applicant’s claim, made at the Tribunal hearing that a boy from his village was detained with him and following the Applicant’s release, the boy was shot by the CID. The Tribunal noted to the Applicant that he had not mentioned before in his claims the presence of this boy, or the fact that he was killed. The Tribunal, as set out in paragraph 35 of the Statement of Decision and Reasons (‘the Decision Record’), explained to the Applicant that the late introduction of this evidence may make it more difficult for the Tribunal to accept that this incident happened as the Applicant claimed. The Applicant said he didn’t mention it before because he was scared. As explained to the Applicant at the hearing, the Tribunal found the claim that he did not mention this before because the Applicant was scared was inconsistent with his actions in relying on claims concerning the death of his business partner.
The Tribunal accepted the Applicant’s claims regarding being picked up by the CID, detained, being questioned about raising money in the UK for the LTTE and being released after payment of a bribe. The Tribunal accepted that these experiences, as set out in paragraph 45 of the Decision Record:-
“…would have been frightening, that the beating he sustained caused him pain, and that he attributes some ongoing back pain to this event. The Tribunal accepts that this treatment amounted to serious harm as envisaged by s 91R(1)(b).”
However, the Tribunal found that the chance the Applicant would again be abducted, beaten and forced to pay a bribe for his release was no more than remote, as 10 years had elapsed since these events, and the circumstances in which the Applicant would be returning to Sri Lanka were very different from those of his return in 2004. The Tribunal noted the civil war ended in 2009, and the Applicant would be one of hundreds if not thousands returning from Australia after widely publicised attempts to gain asylum in Australia by Sri Lankans of different ethnic backgrounds. The Tribunal also found that as the Applicant was released on payment of a bribe very substantially less than originally demanded, and not harmed before his departure from Sri Lanka, the Tribunal found this suggested strongly that the Applicant was of interest to the authorities only as a potential source of bribe monies, and not because he was involved with LTTE fund raising in the UK.
The 2012 and 2014 Incidents
The Tribunal had significant concerns regarding the credibility of the Applicant’s claim in relation to these events. The Tribunal, as set out in paragraph 72 of the Decision Record, found:-
“…it implausible that the Sri Lankan authorities would allow the Applicant to re-enter Sri Lanka by air after only brief questioning if he was a person of interest to them or on a watchlist as he has claimed. The Tribunal does not accept on the evidence before it that the Applicant is on a watchlist. The Tribunal has found above that the Applicant was not suspected of fundraising for or other connection to the LTTE in 2004. On the evidence before it, the Tribunal does not accept that persons identifying themselves as CID went to the Applicant’s house in 2012 or 2014 or at any other time between 2010 or 2014, asked his wife where he was, threatened to kill him or confiscated his passport.”
Actual and imputed political opinion
The Tribunal found there was not a real chance the Applicant would be seriously harmed because of his actual or imputed political opinion arising from his race or his former residence in a predominantly Tamil area should he return to Sri Lanka now or in the reasonably foreseeable future. The Tribunal found that the Sri Lankan authorities would not automatically impute a Tamil fisherman from Udappu with pro-LTTE opinions because of the time he had spent there. The Tribunal noted that it had already found the Applicant would not be believed by the Sri Lankan authorities to be connected to or have raised funds for the LTTE while he was in the UK, and that the CID or persons representing themselves as CID did not come to his house looking for him in 2010 or thereafter.
Religious and ethnic harassment
The bus incident
The Tribunal accepted that the incident in 2011, in which the Applicant claimed he and friends were stopped by traffic police in a small Sinhalese village called Batulla whilst in a bus returning from a Tamil temple had occurred, and that the Applicant had been threatened by Sinhalese villagers. The Tribunal also accepted the Applicant felt affronted and insulted by the comments of police and villagers, but did not accept that this incident amounted to serious harm as envisaged by s 91R(1)(b) or significant harm as envisaged by s 36(2A).
The Tribunal also accepted on the evidence before it that there was conflict in Udappu between villagers and Sinhalese outsiders in relation to a bar in the village being a random and isolated incident. The Tribunal accepted the Applicant may have avoided travelling in that vicinity. However, having regard to the multiple occasions on which the Applicant had travelled through that area before the incident without being harmed in any way, the Tribunal did not accept that he never travelled that way or that he was unable to go anywhere.
Further, the Tribunal did not accept that after more than three years the Sinhalese villagers from Batulla involved would either recognise the Applicant or carry out their previous threats. As a result, the Tribunal found there was not a real chance the Applicant would be seriously harmed if he travelled through the village of Batulla on the way to or from Udappu or as a result of ethnic conflict or tension in the area of Batulla and Udappu should he return to Sri Lanka now or in the foreseeable future. Similarly, the Tribunal found there were no substantial grounds for believing the Applicant faced a real risk of significant harm if he travelled through Batulla or as a result of ethnic conflict or tension in the area of Batulla or Udappu.
The festival incident
The Tribunal accepted that the Applicant was a devout Hindu. The Tribunal accepted the Applicant’s claim that in 2011, a Hindu festival, which the Applicant was involved with, was closed down by police and that he and a friend complained to the police about this. It also accepted that the Applicant’s friend was beaten by police and jailed, and that the police came to the Applicant’s house, but that the Applicant had already left. On the evidence before it, however, the Tribunal found that the police did not pursue the Applicant thereafter. As a result, the Tribunal found the Applicant did not face a real chance of serious harm or a real risk of significant harm for reason of his religion.
The fishing incident
The Tribunal could not dismiss the possibility that the Applicant was stopped after fishing at night, although it found that it was the navy and not the army which stopped him. It also accepted that the Applicant’s fishing equipment was confiscated by the navy, which caused a significant disruption to the Applicant and caused him to change his employment. However, as set out in paragraph 99 of the Decision Record, the Applicant was able to find alternative employment without difficulty and to continue earning a living. On the evidence before it, the Tribunal found that any harm suffered by the Applicant as a result of this incident did not amount to serious harm as envisaged by s 91R(1)(b) or significant harm as envisaged by s 36(2A).
The Tribunal also did not accept that this incident or the bus and festival incidents were related in any way to the incidents in 2004. On the evidence before it, and noting that the Tribunal found that the Applicant was not seriously or significantly harmed in the course of the fishing incident, the Tribunal found there was not a real chance the Applicant would be seriously harmed by the army or navy in connection with work as a fisherman should he resume this, should he return to Sri Lanka now or in the reasonably foreseeable future. The Tribunal also found at paragraph 102 of the Decision Record on the evidence before it that there were no substantial grounds for believing there was a real risk that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, the Applicant would suffer significant harm from the army or navy in relation to work as a fisherman.
The Sinhalisation of Udappu
The Applicant claimed that Udappu was subject to Sinhalisation and that a Buddhist temple had been built there. Having regard to relevant country information before it, the Tribunal did not accept that Udappu was being colonised by Sinhalese people or by Buddhists, and therefore found there was not a real chance the Applicant would be seriously harm or real risk he would be significantly harmed.
Particular social group of Tamils from the north and east
On the evidence before it, the Tribunal did not accept that the Applicant was a member of the particular social group of Tamils from the north and east of Sri Lanka. The Tribunal therefore did not accept there was a real chance the Applicant would be seriously harmed for reason of his membership of this group. The Tribunal discussed with the Applicant at the hearing the fact that it had considered country information, including the Department of Foreign Affairs and Trade (‘DFAT’) country report for Sri Lanka and the United Nations High Commissioner for Refugees (‘UNHCR’) guidelines for Sri Lanka, which indicated that Tamils in Sri Lanka generally are not in need of international protection and do not suffer systemic discrimination and persecution.
The Tribunal noted to the Applicant that as he did not come from the north or the east of Sri Lanka, it may not accept he would face a real chance of serious harm for that reason, which is, in fact, what the Tribunal found. On the evidence before it, and in light of its findings, the Tribunal did not accept the Applicant faced a real chance of serious harm or a real risk of significant harm for reason of his Tamil race or Hindu religion.
Illegal departure and returned asylum seeker
When considering these claims of the Applicant, the Tribunal accepted the Applicant would be questioned at the airport on his return, where he may be held for up to 24 hours while investigations took place. However, the Tribunal found the Applicant did not have a profile that would bring him to the adverse attention of authorities for any reason in the course of this re-entry processing and did not accept that the Applicant would face a real chance of persecution for any reason during any period he might be held for questioning at the airport.
The Tribunal found further that the airport procedures were not aimed at the Applicant for any Convention reason but applied to the general population. Therefore, such questioning, arrest and re-detention did not amount to discriminatory conduct as required by s 91R(1)(c). The Tribunal found further that being held for questioning at the airport did not amount to significant harm under s 36(2)(a). As a result, the Tribunal found there was not a real chance the Applicant would be seriously harmed or a real risk of significant harm for any reason in the course of his re-entry processing.[4]
[4] Decision Record dated 16 January 2015 at paragraph 120.
The Tribunal also accepted that the Applicant would be arrested by the CID and charged under the Immigrants and Emigrants Act 1949 (Sri Lanka) with the offences of leaving from other than a planned port and without a valid passport. The Tribunal found there was nothing in the circumstances to suggest the Applicant was likely to be suspected of being a people smuggling organiser or a repeat offender. The Tribunal also found that the enforcement of this law was one of general application and did not amount to discriminatory conduct, and that the law was not selectively enforced and did not have a different impact on different groups.
The Tribunal found the Applicant would be detained for a short period prior to be being bailed on personal reconnaissance, and that the Applicant’s family members would be available to guarantee his bail. Additionally, on the evidence before it, the Tribunal found there was not a real chance the Applicant would be given a custodial sentence. It found that if convicted, the Applicant would be subject to an alternative financial penalty and that he would be able to meet any fine imposed. The Tribunal noted the delegate’s decision wherein the Applicant told the delegate that he was wealthy.
The Tribunal concluded there was not a real chance the Applicant would face serious harm as a result of his illegal departure from Sri Lanka or as a returned asylum seeker from a western country, or that there was a real risk of significant harm for the same reasons.
The Tribunal then considered whether there were any other reasons the Applicant would be harmed if he returned to Sri Lanka, and in relation to all of the issues remaining as raised by the Applicant, the Tribunal did not accept on the evidence before it that the people who organised the Applicant’s trial were connected to the army, and that there was no more than a remote chance the Applicant would be harmed as a result of any money he owed for his passage to Australia. The Tribunal thus found there was not a real chance of serious harm or a real risk of significant harm as a result of any debt arising from the Applicant’s passage to Australia.
On the evidence before it, and having regard to its findings of fact, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution, nor that there were substantial grounds for believing that he faced a real risk of significant harm. Accordingly, the Tribunal found the Applicant did not satisfy the refugee and complementary protection criteria under the Act.
Consideration
Ground 1
This was a case to which s 422B of the Act applied and, thus, the Tribunal was not required to afford to the Applicant common law natural justice.[5] The Tribunal was required to act in accordance with the natural justice provisions as set out in the Act under Division 4, Part 7. The Applicant identified no breach of any of those provisions.
[5] Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
When reviewing the history of the proceeding in the Tribunal and the Tribunal hearing itself, it is apparent the Tribunal complied with its obligations under Division 4, Part 7 of the Act, including obligations imposed by ss 414 and 425 of the Act. No obligations under s 424A of the Act arose, given that all of the information relied on by the Tribunal in making its decision, namely, the Applicant’s own evidence and the available country information before it, fell within one of the exceptions to s 424A(1) found in s 424A(3) of the Act.
Ground 2
Ground 2 is a bare assertion of the Applicant’s and the Court is not assisted by it without any particularisation. I note it is not for the Court to create grounds with particulars for the Applicant. However, when examining the Tribunal decision, it is apparent that the Tribunal referred to and applied correctly the applicable legislation and relevant legal tests in relation to both the Refugee Convention criterion and the complementary protection criterion. The Tribunal made findings of fact on the evidence before it. The factual findings made by the Tribunal were open to it on the evidence and the Tribunal proceeded in a logical, comprehensive and careful manner to consider each and every of the claims made by the Applicant. The Tribunal put matters of concern to it to the Applicant for his comment and discussed with the Applicant relevant country information. The Tribunal asked the Applicant “if there were any reasons he had not raised that he feared he would be harmed if he returned to Sri Lanka the applicant said there were not”.[6]
[6] Decision Record dated 16 January 2015 at paragraph 130.
No jurisdictional error attends the decision of the Tribunal and the application will be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 4 September 2017
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