MZYNI v Minister for Immigration
[2012] FMCA 351
•30 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYNI v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 351 |
| MIGRATION – Review of Independent Merits Review – refusal of a protection visa – no matter of principle – application dismissed. |
| Migration Act 1958 (Cth), ss.46A, 477 |
| SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 |
| Applicant: | MZYNI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | THE INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 980 of 2011 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 21 February 2012 |
| Date of Last Submission: | 21 February 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 30 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appearing in person |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the First Respondent: | Mr Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | There being no appearance by or on behalf of the Second Respondent |
ORDERS
The application filed on 15 July 2011 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 980 of 2011
| MZYNI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of a review engaged by the Minister to make a recommendation relevant to the operation of section 46A of the Migration Act.
The Applicant entered the country as an ‘off-shore entry person’ and was the subject of a merits review delivered on 29 April 2011. The Applicant was notified of the recommendation of the review on 11 May 2011, which found that the Applicant did not ‘face a real chance of “Convention-related persecution in Sri Lanka in the reasonably foreseeable future”’.
On 8 June 2011 the Applicant’s brother filed an application to review the recommendation. The application was dismissed on 17 June 2011 and the Applicant was given leave to file a further application within 21 days of the date of the Orders.
On 15 July 2011 the Applicant filed an application for an order to review in this Court.
As a result of the Full Court of the Federal Court’s decision in SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 an extension of time to file proceedings is not required as s.477 is taken not to apply where the Minister is yet to make a decision.
Background to the Applicant’s claim
The Applicant claims that he has a well-founded fear of persecution in Sri Lanka. He says that one of his brothers died in a shelling exercise in 1999 and that his other brother went missing the same year. The Applicant said he left Sri Lanka in 2010 because the army used to capture and torture him and that, on those occasions, he would be asked where his brothers were and whether they were “part of the movement”. He said that during the ceasefire with the Tamil Tigers from 2002 to 2006, things were relatively quiet, but the problems started again in 2006, when he would have been around 18 years of age.
At the interview with the Reviewer, discrepancies in the versions that he had given in the past were discussed. A summary of the interview between the Applicant and the Reviewer appears at pages 6 to 9 of the review decision, following which the Reviewer outlines a large amount of country information.
Ultimately, the Reviewer accepted that the Applicant was detained in 2006 by soldiers and that they would have taken an interest in what had happened to his brothers. However, the Reviewer also noted that he was quickly released (although treated roughly) (see page 15 of the decision).
However, with respect to allegations of subsequent periods of detention, the Reviewer noted that the Applicant had given entirely different accounts. For example, the Applicant had previously claimed to have been detained only once in February 2010, where he said he was held with two or three others and released on conditions. However, he later said that he was detained with five other detainees. The detention included sexual abuse. The Applicant said he and the others escaped together. The Reviewer had some difficulty being clear as to whether there were two separate occasions in February or one occasion described quite differently, the first occasion as being held with two or three others and then released on conditions, and another occasion as a five or six day detention involving sexual abuse, followed by an escape (see page 16 of the decision).
Ultimately, the Reviewer did not accept that the Applicant’s evidence was reliable with respect to the periods of detention after 2006, nor that he was at any real risk if he returned to Sri Lanka. The Reviewer went on to consider whether he may be at risk simply as a young Tamil male, and also whether he may be at risk as a young Tamil male returning after illegally departing from Sri Lanka.
Ultimately, the Reviewer concluded (at page 18 of the decision):
I find there is only a remote chance of [the applicant] being seriously harmed by Sri Lankan authorities or their agents upon or after return to Sri Lanka. In the event that [the applicant] were to face scrutiny and even penalty for illegal departure I find on the evidence before me that Tamil ethnicity or imputed pro-Tamil political sympathies would not be the essential and significant factors in the scrutiny he would received. (emphasis added)
The Applicant’s grounds in his application are as follows:
1. The Independent Protection Assessment Reviewer has failed to consider my claims for a Protection Visa in Australia, more particularly the following:
i. The number of times I was arrested and detained by the Sri Lankan army as I was suspected by them to be a member of the ‘Sirruthaipaddai group’ of the LTTE.
ii. While I was detained, I was harassed and badly beaten by the Sri Lankan army.
iii. As I have escaped from the Sri Lankan army’s detention, if I return to my country, the strong possibility for me to get arrested by the Sri Lankan army, detained, beaten and persecuted of killed by them had been completely ignored and not considered.
iv. The Independent Protection Assessment Reviewer in his recommendation has stated ‘I find there is only a remote chance of [the Applicant] being seriously harmed by the Sri Lankan authorities or their agents upon or after return to Sri Lanka.’ This clearly indicates that the above Reviewer had some doubts in his mind that I will be harmed by the authorities of my country after I return to my country. Had the above reviewer considered my claims in a realistic way, he would have understood the real chance of me being persecuted if I return to my country.
2. I was denied natural justice and will be denied natural justice if I return to my country.
3. I will not be protected by the authorities of my country if I return to my country.
4. I have no other country to go from Australia.
5. The various reports about human rights violations, arrests, detentions and persecutions of the asylum seekers deported to my country from Australia were not taken into consideration in assessing my claims for a protection visa.
Ground 1
At the hearing before me, the Applicant argued that because the Reviewer believed part of his version of events and rejected another part, that the Reviewer had fallen into error. I note that the number of times that he was arrested and detained in Sri Lanka is discussed in detail at the Reviewer’s decision at pages 15 to 17. The events that occurred during detention are also discussed in detail, indeed, the claim of detention in 2006 was accepted, but the most recent times of detention were rejected.
The claim that he escaped from Sri Lankan Army detention was rejected by the Reviewer, after being squarely dealt with.
Finally, the finding of there being only a “remote chance” does not show doubt on the part of the Reviewer, but demonstrates that the Reviewer carefully assessed the chances of the Applicant coming to harm in Sri Lanka.
None of these matters appear to demonstrate a proper ground for judicial review in this case.
Ground 2
With respect to the second ground of review, it appears that the Applicant was dissatisfied with the ultimate findings of the Reviewer, but could not point to a specific issue about which he was denied natural justice or procedural fairness. During his oral submissions, the Applicant indicated he was not certain about the quality of the interpreter, however, there is no material before me to show that there was any difficulty with the interpreter or any lack of capacity on the interpreter’s part.
In the circumstances, this ground cannot succeed.
Grounds 3 and 4
Grounds 3 and 4 of the review application simply argue the matter on the merits and are not a basis for judicial review.
In the circumstances, these grounds cannot succeed.
Ground 5
With respect to the reports of various agencies, the Applicant was not able to identify any specific report that he had said was relevant and not taken into account. It is clear that the Reviewer did survey a number of reports in pages 9 to 13 of the decision. In pages 8 to 9, the Reviewer specifically identified a number of reports that the Applicant referred to in submissions which were downloaded from the internet, and records that he specifically drew the Applicant’s attention to the content of the UNHCR’s eligibility guidelines with respect to Sri Lanka, and also to the contents of the DFAT and UK Home Office opinions about issues relating to returnees. Nothing that is raised before me indicates failure to effect procedural fairness or to refer to, or take into account, relevant material.
In the circumstances, this ground cannot succeed.
Conclusion
In the circumstances, the Applicant has not established a proper ground for judicial review and I must therefore refuse the application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Reithmuller FM.
Date: 30 April 2012
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