MZASA v Minister for Immigration

[2016] FCCA 1413

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZASA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1413

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal – application for a Protection (Class XA) visa – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 91R(1)(c)

Applicant: MZASA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 319 of 2015

Judgment of: Judge Hartnett

Hearing date: 29 March 2016

Delivered at: Melbourne

Delivered on: 10 June 2016

REPRESENTATION

Counsel for the Applicant: Mr Hughan

Solicitors for the Applicant: Ambi Associates

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended 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 319 of 2015

MZASA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By amended application filed on 29 February 2016 the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 23 January 2015 wherein the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Protection (Class XA) visa (‘the visa’). The Applicant seeks an order that the decision of the Tribunal be quashed and there be issued a writ of mandamus directed to the Second Respondent, requiring the Second Respondent to determine the Applicant’s application according to law. The Applicant seeks costs.

2. The grounds of application as set out in the amended application are as follows:-

   “1. The Tribunal made an erroneous finding of fact as to the evidence of the Applicant, which caused it to reject a significant integer of the Applicant’s claim that he was a person to whom Australia owed protection obligations pursuant to the Refugees Convention, and pursuant to the complementary protection provisions, which thereby led the Tribunal to fail to exercise the jurisdiction conferred upon the Tribunal by s 414 of the Act to review the delegate’s decision.

   Particulars

   (a) The Tribunal rejected an integer of the Applicant’s claim, i.e. that he had been continually harassed by the authorities in Sri Lanka until a few days before he departed for Australia.

   (b) The Applicant explained the authorities’ continual harassment of him on the basis of a perceived association with the LTTE, due to an incident which he had not disclosed prior to the hearing before the Tribunal.

   (c) The Tribunal’s rejected the Applicant’s evidence of this incident, based on the Tribunal’s misunderstanding of the evidence given by the Applicant as to the reason for his not having previously disclosed this incident. This led the Tribunal to reject this integer of the Applicant’s claim.

   (d) The rejection of this integer of the Applicant’s claim was critical to the Tribunal’s decision [to] affirm the decision not to grant the Applicant a protection visa.

   (e) The Tribunal thereby failed to exercise its power to review the primary decision.”

3. The First Respondent argues the Tribunal decision dated 23 January 2015 is not affected by jurisdictional error and that the application should be dismissed with costs following the event.

4. The Applicant first made application to the Court for review of the Tribunal’s decision on 19 February 2015. The amended application was filed on 29 February 2016 together with the Applicant’s written submissions which the Applicant relies upon. The Applicant relies also upon an affidavit of Mrs Nimalini Ambikaipalan sworn or affirmed on 18 March 2016. The affidavit of Mrs Ambikaipalan annexes evidence which was given before the Tribunal and in part has been transcribed. It is this evidence which the Applicant says is at the heart of the sole ground of the amended application.

5. In addition to the evidence contained in the above annexed partial transcript of the Tribunal hearing the Applicant refers to the following submissions made by the Applicant’s agent, as confirmed by Counsel for the First Respondent, to the Tribunal in his summing up at the conclusion of the hearing:-

   a)the Applicant had struggled to communicate his thoughts during the review process;

   b)the Applicant was scared about revealing links to the LTTE for fear of repercussions this could cause him in Australia;

   c)the Applicant had been led to believe by people smugglers and various others in detention that if he mentioned links to the LTTE he could be immediately repatriated to Sri Lanka;

   d)this information contributed to the Applicant not grasping which information was relevant and which was not in the course of review which resulted in some claims not being provided earlier in the process; and

   e)the Applicant feared indefinite detention and possible torture on return to Sri Lanka.   

6. The First Respondent relied upon a response filed on 27 February 2015 and the First Respondent’s contentions of fact and law filed on 21 March 2016. In addition, the Court had in evidence before it the contents of the Court Book filed by the Solicitors for the First Respondent on 9 December 2015.

Background

1. The Applicant is a 27 year old citizen of Sri Lanka. Prior to leaving Sri Lanka he lived with his family in Batticaloa, in eastern Sri Lanka. He is a Tamil Hindu, who arrived by boat at Christmas Island on 20 June 2012 as an unauthorised maritime arrival.

2. The Applicant lodged an application for a Protection (Class XA) visa (‘the visa’) on 7 November 2012, supported by a statutory declaration dated 24 October 2012 detailing his claims.

3. The Applicant was interviewed by a delegate of the Minister on 3 April 2013, where he was assisted by an interpreter and accompanied by his migration agent. His application for the visa was refused by the delegate of the Minister on 8 July 2013.

4. The Applicant then lodged an application for review of the decision of the delegate to refuse to grant the visa. Such review was lodged with the Tribunal on 16 July 2013.

5. The Applicant was invited to appear before the Tribunal on 19 November 2014 to give evidence and present arguments in his case. He appeared, assisted by an interpreter and represented by his migration agent. On 23 January 2015 the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa.

Applicant’s claims

1. The Applicant’s claims are accurately summarised in the Tribunal’s Statement of Decision and Reasons dated 23 January 2015 (‘the Decision Record’) and are as follows:-

   “22. The applicant left Sri Lanka because he was harmed by the government, Special Task Force (STF) and the army. They targeted him after an attack on his area on 22 June 2008 that resulted in the death of two STF officers. Before the attack his home had been receiving threatening phone calls from a Sinhalese speaker who did not identify himself but who told his father he had to pay them money. On the day of the attack the applicant heard a blast and was in a room studying. The STF raided his home, grabbed him, accused him of being LTTE and beat him causing him to lose a tooth. He has scars on his hip, back and arm as a result and suffered psychologically.

   23. After the attack, the STF took the applicant and two of his friends to an abandoned house near the beach and beat them badly in separate rooms. They were then taken to their camp. They then put him in a jeep and he lost consciousness and woke up in hospital. He found out that his friends had died because of the violence. The police came to the hospital and the applicant made a complaint about the STF and gave them photographs of what they did to his house.

   24. It took the applicant 3-4 months for him to recover. Due to this incident he did not sit his A-level exams. The army continued to kill families in their area. The army and STF would keep coming to his house to carry out checks and ransack it. This was at least once a fortnight. They would also come if there was a function. They had to stand with their hands raised and he would be stripped and forced to walk in the sun. They would stomp on his feet and question him about LTTE members. He was covered in a cape and forced to point them out. He was taken to their camp, beaten, left in the hot sun and forced to move sandbags. The last search he experienced was on 27 May 2012. He was taken one day by the army who threw a hand grenade into an empty police shed making it appear that he had been shot and killed and frightening his parents. The army have been back to the house to check since he left.”

The Tribunal

1. The claims set out above were all made by the Applicant prior to the Tribunal hearing. The Tribunal accepted many of the above claims. It did not accept however, the claim that before the June 2008 attack, the Applicant’s family received threatening phone calls from an unidentified Sinhalese speaker who told his father to pay money. Nor did the Tribunal accept those claims set out in paragraph 24 of the Decision Record save the Tribunal accepted it took the Applicant three to four months to recover and that as a result he did not sit his A-level exams. At the hearing the Applicant gave inconsistent evidence as to the June 2008 attack which was put by the Tribunal to the Applicant. The Tribunal thereafter determined that the Applicant’s family did not receive the claimed threatening calls. The other claims, rejected by the Tribunal, are dealt with hereafter.

2. The Applicant made other and further claims at the hearing before the Tribunal. He claimed that the authorities regularly continued to harass him up until 3 days before he departed the country in the middle of 2012. The Tribunal did not accept this claim.

3. The Tribunal said, as to those claims it did not accept, the following:-

   “33. The applicant claimed at the hearing that the authorities regularly continued to harass him up until three days before he departed the country in the middle of 2012. I do not accept his claims in this regard. Asked how many times he was taken on search operations and forced to point people out as LTTE suspects he said 2-3 times a week. Queried further about this he said it was 2-3 times a week and then once a month. He said the authorities would search or target his house every week or fortnight. I find the applicant’s claims that he was the subject of such constant attention from the authorities for four years to be implausible and not credible in all the circumstances. The applicant and his family were not involved in the LTTE, other than his father being forced to give them money and food years before. The applicant was released in 2008 which indicates that the authorities did not continue to suspect him of involvement in the deaths of the officers. The war ended in 2009 with the defeat of the LTTE and as the independent country information set out above establishes there has been a general improvement in the situation for Tamils.

   34. At the hearing, I put to the applicant that I had doubts that the authorities would so regularly harass him and question him given he and his family had not been involved in the LTTE, the war had ended in 2009 and he was released in 2008 and never charged. The applicant stated that a distant relative of his father had joined the LTTE and that on 25 December 2007 this relative had exploded a bomb that killed two senior officers. He claimed that this relative was his friend. He claimed that some people saw his friend do this operating a remote control. He claimed that the police arrested him and killed him. The applicant stated that he did not tell the delegate about this at the interview. As to why he said he was scared and had been told by people smugglers and people in detention not to mention it. He said he had not discussed this matter with his agent. I do not accept that the applicant had a relative/friend who was involved in the LTTE and who had exploded a bomb which killed officers and that this person was later arrested and killed by the authorities. The applicant did not refer to such an incident in his interview with the delegate or his statutory declaration. Applications for protection visas are confidential and the applicant has been represented throughout the process. In all the circumstances, I do not consider it credible that he would fail to mention such an important factual matter if it had actually occurred.

   35. At the hearing, the applicant stated that there was an incident in April 2011 when the army forced him to put up a national flag and climb a coconut tree. He said they hit him and he was injured and had to go to hospital. He said he still had a scar and he showed me a scar the size of a 20 cent coin on his elbow. I commented that it was not that visible and he said he had some on his chest. Later in the hearing the applicant stated he had not mentioned the flagpole incident to the delegate at interview. As to why he had not mentioned this incident in his interview or in his statutory declaration, he stated that there were many incidents and he thought he would mention the most important ones and that he was used to the treatment. I do not consider his response to be credible. The applicant has claimed that in the incident he was injured so badly he was scarred and had to go to hospital. I do not accept that he would fail to mention such a significant incident particularly in the light of him being represented throughout the process. I do not accept that he was forced to climb a tree or pole and put up a flag and was beaten as he has claimed. Whilst he has some minor scarring, I do not accept that it has arisen in the manner he has claimed.

   36. The applicant’s scarring is minor and difficult to see and I do not accept that there is a real chance or risk that the authorities or anyone else would notice it. Even if they did the most recent information from DFAT is that there is no recent evidence to indicate that people have been detained due to conflict-related scarring. The applicant commented in response that the government wants people to believe this as it is still going. I have considered his response but the information is from the Australian government not the Sri Lankan government. Given this country information and his individual circumstances, I do not accept that the minor scarring he has will lead to him being imputed with pro-LTTE political opinion or to be of adverse interest to the authorities or anyone else.

   37. Given my concerns about the applicant’s credibility and the factors set out in paragraph 33, I do not accept that the army and STF kept coming to the applicant’s house to carry out checks and ransack it. I do not accept that he had to stand with his hands raised and he would be stripped and forced to walk in the sun. I do not accept that they would stomp on his feet and question him about LTTE members. I do not accept that he was covered in a cape and forced to point out suspected LTTE members particularly given he and his family had not been involved in the LTTE and he would not have had any knowledge of its activities and participants. I do not accept it credible that the authorities would have been treating him in this way up until three days before he left Sri Lanka in 2012 as he claimed at the hearing. I do not accept that he experienced continual adverse attention from the authorities as he has claimed. I do not accept that he was taken to their camp, beaten, left in the hot sun and forced to move sandbags or do other work. I do not accept that he was taken by the army who threw a hand grenade into an empty police shed making it appear that he had been shot and killed and frightening his parents. I do not accept that he is of any adverse interest to the authorities and that the authorities have been back to the house to look for him since he left Sri Lanka.

   38. At the hearing the applicant claimed that his father had problems with both the LTTE and the STF. He said that the LTTE extorted money off his father and demanded a son. He said his father gave them the money and closed his business. He said his father was beaten up by the LTTE and that the STF had thought that his father had given financial support and food to the LTTE and they questioned and beat him up in 2005. He said that his father paid bribes to the officer and this was in 2006. Despite the lateness of such claims, I am willing to accept that these incidents happened. However, as put to the applicant, the events happened 8-9 years ago to his father and not him and the war has now ended with the defeat of the LTTE. The applicant commented that there were still military camps nearby and that there are still problems.”

4. The Tribunal relied on country information, in particular UNHCR assessments, in finding that Tamils who were not suspected of certain LTTE links, no longer had any profile that would provide the basis for a well-founded fear of persecution by reasons of ethnicity, membership of a particular social group, or an imputed political opinion. Having rejected the Applicant’s late claim about having a distant relative who was also a friend who had been an LTTE member and had been responsible for exploding a bomb that killed two senior officers, the Tribunal noted that no claim had been made that the Applicant or anyone else in his immediate family had ever been involved in the LTTE. In all the circumstances the Tribunal did not accept that there was a real chance or a real risk that the Applicant would be suspected of being linked to the LTTE now or in the foreseeable future.

5. Based on the Applicant’s individual circumstances and the overall weight of country information, the Tribunal found that the Applicant did not face a real chance of serious harm, or a real risk of significant harm, by reason of his Tamil race, membership of particular social groups – including young Tamil males or his family – or his actual or imputed political opinion, or for any other Convention reason, now or in the reasonably foreseeable future from the authorities, paramilitary groups or the LTTE.

6. The Tribunal found that upon return to Sri Lanka the Applicant would not be of any adverse interest to the authorities as a suspected LTTE supporter or for any other reason.

7. The Tribunal further considered that the Applicant would be subject to a law of general application on account of having left Sri Lanka illegally, but the law was not discriminatorily applied. All Sri Lankans returning after illegal departure would be treated in the same manner. A short period of exposure to poor prison conditions would not amount to systematic and discriminatory conduct, under s.91R(1)(c) of the Migration Act 1958 (Cth) (‘the Act’).

8. The Tribunal also found that the risk that the Applicant would be subjected to torture or any other form of significant harm was remote, and thereby concluded that the Applicant would not engage Australia’s protection obligations under complementary protection provisions in s.36(2)(aa) of the Act.

Consideration

1. In his amended application the Applicant nominated a single ground – that the Tribunal made an erroneous finding of fact, which caused it to reject a significant integer of the Applicant’s claims, thus failing to exercise its jurisdiction.

2. The Applicant’s submissions to the Court are succinctly stated by the First Respondent to be as follows:-

   “21.1 that the Tribunal misstated and misunderstood the Applicant’s evidence as to why he had not mentioned to the delegate or in his statutory declaration the bombing perpetrated by his distant relative and friend who had been an LTTE member, when it found that the applicant had said “he was scared and had been told by people smugglers and people in detention not to mention” any connection to the LTTE;

   21.2 that the applicant’s fear of disclosing his connection to the LTTE at an earlier stage in the review process was that an admission to having such a connection may cause him to be detained longer and made the subject of further intelligence investigations by the Australian authorities;

   21.3 that the Tribunal rejected the applicant’s account of a distant relative and friend who was an LTTE member having exploded a bomb killing two senior officers in December 2007 as he “did not refer to such an incident in his interview with the delegate or his statutory declaration. Applications for protection visas are confidential and the applicant has been represented throughout the process.” The Tribunal did “not consider it credible that he would fail to mention such an important factual matter if it had actually occurred”;

   21.4 that it should be inferred from the Tribunal’s reference to the confidentiality of the protection visa process that it misunderstood the applicant’s fear that motivated his non-disclosure as being harmful consequences being directed at him by “people smugglers and/or other persons in detention” or persons (like the Sri Lankan authorities) whom they may tell should the applicant disclose his LTTE connection. The Tribunal reasoned that such persons would not find out about the disclosure, by reference to the confidentiality of the application process, so the applicant’s reasons for non-disclosure made no sense, and as a consequence the applicant’s explanation was rejected.”

1. The Applicant’s submission that the Tribunal wrongly understood whom the Applicant feared harm from, and that it was in fact the Australian authorities as should be inferred by the Tribunal’s use of the phrase “application for protection visas are confidential” in paragraph 34 of its Decision Record is rejected by the Court. Such an inference cannot be drawn.

2. The Tribunal refers to the confidentiality of protection visa applications in the same sentence as noting that the Applicant had been represented throughout the process. The Minister contends that the Tribunal was juxtaposing the fact that the Applicant was represented throughout the process with the confidentiality of protection visa applications in order to provide relevant context for the Applicant’s failure to mention such an important factual matter to his representative, when the process was a confidential one. The Applicant’s apparent failure to confide in his representative in these circumstances it is submitted, contributed to the Tribunal’s conclusion that it was not credible that the Applicant had failed to mention the incident previously if it had actually happened. The Court accepts this submission.

3. The Tribunal considered all of the claims made by the Applicant. It did not fail to consider a claim. The Tribunal accepted many such claims and rejected others. It made findings of fact including credibility findings which were open to it on the material before it. It is not a matter for this Court to engage in merits review by making the inference as sought by the Applicant in circumstances where such inference is not available to the Applicant on the evidence.

4. The application will be dismissed with costs.

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

Associate: 

Date:  10 June 2016