MZARX v Minister for Immigration

[2016] FCCA 3446

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZARX v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3446

Catchwords:
MIGRATION – Protection visa – witness credibility findings adverse to the applicant – no error by Tribunal – application dismissed.

Legislation:

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

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant: MZARX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 286 of 2015

Judgment of: Judge Wilson

Hearing date: 7 December 2016

Date of Last Submission: 7 December 2016

Delivered at: Melbourne

Delivered on: 7 December 2016

REPRESENTATION

Applicant in person

Counsel for the First Respondent: Mr C Tran

Solicitors for the
First Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 16 February 2015 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 286 of 2015

MZARX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed 16 February 2015 the applicant sought orders setting aside the decision of the Refugee Review Tribunal,

   
   

   now the Administrative Appeals Tribunal (“the Tribunal”) made

   
   

   22 January 2015.[1] The Tribunal affirmed a decision of the Minister’s delegate made 16 July 2013 pursuant to which the delegate refused to grant the applicant a Protection (Class XA) visa.[2]

   [1] Court Book filed 9 October 2015 at pp.294-319.

   [2] Court Book filed 9 October 2015 at pp.171-190.

2. The applicant contended that the Tribunal’s decision was attended by jurisdictional error. The applicant’s grounds of review gave no insight into the real basis on which the applicant sought to invoke the jurisdiction of this Court. The grounds of review stated in the initiating application were these -

   1.  The decision of the Tribunal: 

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

   (b)     denied the applicant procedural fairness.[3]

   [3] Application filed 16 February 2015 at p.3.

3. No details were given as to why the applicant asserted that the decision of the Tribunal was affected by error of law nor were any details given as to why procedural fairness was allegedly denied. 

4. Naturally, this Court is forbidden from undertaking a merits review of the Tribunal’s decision as has been held in such cases as Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[4] Abebe v Commonwealth of Australia[5] and Collector of Customs v Pozzolanic Enterprises Pty Ltd.[6]

   [4] (1996) 185 CLR 259.

   [5] (1999) 197 CLR 510.

   [6] (1993) 43 FCR 280.

5. It is necessary to examine the Tribunal’s reasons with a view to detecting the existence of jurisdictional error. The applicant did not file affidavit material nor did he identify the facts by which it could be said that a denial of procedural fairness occurred. To the contrary, as

   
   

   Mr Tran of counsel for the Minister submitted, the Tribunal explored in some detail the procedure that it conducted in this case in paragraphs such as 41, 43, 45, 65, 68, 83, 92, 93 and 95. 

6. Some of the key facts may be shortly stated.

7. The applicant arrived in Australia on 2 July 2012 as an unauthorised maritime arrival. On 23 November 2012 he applied for a protection visa. The Minister’s delegate refused to grant that visa on 16 July 2013. On 14 August 2013 the applicant applied to review the delegate’s refusal.[7] On 22 January 2015 the Tribunal affirmed the delegate’s decision. 

   [7] Court Book filed 9 October 2015 at pp.192-197.

8. The Tribunal synthesised the applicant’s claim to fear harm on three bases. They were -

   a)his race as a Tamil;

   b)his imputed political opinion in that he is perceived to be a member or former member of the Liberation Tigers of Tamil Eelam; and

   c)he is a member of failed Tamil asylum seekers who are detained and interrogated. 

9. The Tribunal expressed its concerns about the applicant’s overall believability stating on several occasions that the applicant’s version of events –

   a)was vague and contradictory;

   b)included false assertions;

   c)was unsupported as to dates; and

   d)was suspicious because he encountered no difficulties re-entering Sri Lanka after a period in the United Arabic Emirates indicating that he was of no interest to Sri Lankan authorities. 

10. Pausing there, Mr Tran submitted that the Tribunal was placed in a position par excellence to assess credibility issues. To that end, the Minister relied on the well-known observation of McHugh J in the decision of Re Minister for Immigration and Multicultural Affairs;
    Ex parte Durairajasingham.[8] The Minister did not refer to the more recent decisions on the subject of credibility assessment where the

    
    

    Full Court of the Federal Court of Australia addressed McHugh J’s observations as well as others in CQG15 v Minister for Immigration and Border Protection[9] (“CQG15”).

    [8] (2000) 168 ALR 407.

    [9] [2016] FCAFC 146.

11. I have taken into account the Full Court’s decision of CQG15 and applied it on the basis that it more comprehensively examined complex questions of witness credibility assessments. 

12. The Tribunal addressed each of the three bases on which the applicant claimed fear. At paragraphs 58 to 65 of its reasons the Tribunal addressed claims that involved his identity as a Tamil. At paragraph 66 the Tribunal rejected such a claim. The Tribunal addressed the applicant’s claims that revolved around any political opinion that would be imputed to him. It did so between paragraphs 71 to 77 of its reasons. The Tribunal rejected that aspect of his claim as well.

13. The Tribunal addressed the applicant’s claims that were relevant to his asserted status as a failed asylum seeker. It did so between paragraphs 78 and 91 of its reasons, rejecting the claim on that stated ground.

    
    

    The Tribunal also addressed the applicant’s illegal arrival in Australia and canvassed that aspect of the case between paragraphs 92 and 106 of its reasons, rejecting the applicant’s intentions.

14. The Tribunal also addressed complementary protection issues, rejecting the applicant’s contentions in that regard, concluding that the applicant did not meet the criteria in relation to s.36(2) of the Migration Act1958 (Cth). To my way of thinking, no error was discernible in the Tribunal’s reasons as recorded above.

15. Insofar as the Tribunal relied on country information, the decision in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[10] permitted the Tribunal to give such weight to country information as the Tribunal thought fit. No error emerged in relation to the Tribunal’s examination of country information. 

    [10] [2004] FCAFC 10.

16. As a model litigant, Mr Tran very properly brought to my attention what he called a potential defect in the Tribunal’s reasons. Mr Tran referred to the Tribunal’s consideration of the applicant’s illegal departure from Sri Lanka. He brought to my attention that the Tribunal accepted that, upon the applicant’s return to Sri Lanka, he would be charged with contravention of Sri Lankan legislation applicable to persons who return to Sri Lanka after illegally departing from it.

17. Mr Tran brought to my attention the recent decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection[11] (“SZTAL”). He took me to the definition of

    
    

    “significant harm” and how intention is relevant. In that case, the

    
    

    Full Court rejected a particular construction of that phrase. Special leave to appeal from that decision has been granted by the High Court. However, the High Court has not heard the appeal and, as the law presently stands, the decision in SZTAL binds me.

    [11] [2016] FCAFC 69.

18. The Tribunal gave the applicant a hearing and it heard the applicant’s presentation of evidence and argument. The applicant did not identify any error in the Tribunal’s approach in the hearing. I detected none. The Tribunal produced a 26-page set of reasons that ran for 113 paragraphs. Far from those reasons evidencing error or even jurisdictional error, the reasons revealed a careful and well-considered approach by the Tribunal to the applicant’s case.

19. In my judgment, the applicant failed in this application for judicial review. I dismiss his application and order him to pay the Minister’s costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 24 January 2017