MZYNJ v Minister for Immigration
[2012] FMCA 254
•5 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYNJ v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 254 |
| MIGRATION – Application for review of decision of Independent Merits Reviewer – findings of past injuries suffered by applicant – possible difficulties in earning a living – failure to consider claim of economic harm – other three grounds of application unsustainable – application allowed. |
| Migration Act 1958, s.91R |
| MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 SBTF v Minister for Immigration and Citizenship & Anor [2007] FCA 1816 Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 |
| Applicant: | MZYNJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 821 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 24 February 2012 |
| Date of Last Submission: | 24 February 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr. R. Knowles |
| Solicitors for the Applicant: | Ravi James Lawyers |
| Counsel for the First Respondent: | Mr. W. Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
DECLARATION
The Court declares that the recommendation of the second respondent was not made in accordance with law.
ORDERS
The Court orders that the first respondent pay the applicant’s costs fixed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 821 of 2011
| MZYNJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks review of a decision of the Independent Merits Reviewer (“Reviewer”) dated 30 April 2011, by which the Reviewer found that the applicant did not meet the criteria for a protection visa. He asserts four grounds of application, three of which I think must be rejected, but one of which must succeed. Accordingly, for the reasons that follow, the applicant will have the declaratory relief he seeks.
Facts found by the Reviewer
In the light of the way the applicant has presented his case, it is appropriate to record some of the findings of fact that were made by the Reviewer about the applicant.
The Reviewer accepted that the applicant was a Tamil from Sri Lanka. The Reviewer accepted that the applicant and his family were professional temple musicians who were well known on the Jaffna Peninsula and that he played at functions where members of the LTTE were present and also at functions for the Sri Lankan Army (“SLA”).
The Reviewer accepted that when the applicant was travelling in the north of Sri Lanka, he was stopped various times at SLA checkpoints and that he was interrogated and, on occasions, was physically abused, these events occurring in 2004. The Reviewer accepted that such treatment on occasion amounted to serious harm and persecution within the meaning of the Refugees Convention.
The Reviewer, however, did not accept that the applicant was suspected of being a member or supporter of the LTTE, because he was always released after a few hours which would not have been the case had such suspicion obtained.
The Reviewer accepted, giving the applicant the benefit of the doubt, that he had been beaten by the SLA in Colombo but noted again that he was released, which the Reviewer thought would not be the case in the event that he was seriously regarded as a member or supporter of the LTTE.
The Reviewer noted that it was the applicant’s evidence that his family, although initially interned in camps, had now returned to their home area, and concluded that this indicated that the Sri Lankan authorities did not regard them as sympathisers of the LTTE.
The Reviewer noted that the applicant has an obvious injury to his leg and accepted that this was caused by an exploding shell. The Reviewer did not accept that this had given rise to the SLA assuming that he was a supporter of the LTTE because he had always been released by the SLA if questioned. The Reviewer did not accept that the injury would lead to the inference that he sustained the injury fighting for the LTTE and would be regarded as an LTTE supporter as a result.
The Reviewer accepted that the applicant has a genuine fear that he will be subjected to serious harm on return to Sri Lanka, based partly on his past experiences and treatment.
The Reviewer found that the applicant and his family had never been involved in politics and did not accept that he would be imputed with anti-government political opinion, and that there was no real chance that he would be persecuted for reasons of an imputed political opinion (CB 161 at paragraph 69).
The Reviewer also found at paragraph 76 (CB 162):
“The claimant has been tortured in the past on account of his ethnicity. That torture included sexual abuse. His past treatment has affected his ability to function and he suffers from depression, anxiety and post traumatic stress disorder. He has permanent injuries as a result of his ill-treatment. As outlined in the report from Mr Coffey he suffered an injury to his arm when he was tortured which has affected his ability to play the Thavil. The claimant has little formal education and has been a musician his whole life. He is concerned that his injury may affect his ability to earn a livelihood in the future and provide for his family.”
In light of these findings, I come to the various grounds pressed in the application.
Failure to deal with the issue of psychological harm in Sri Lanka
The gravamen of this claim is set out at paragraph 5.12 of the applicant’s written submissions as follows:
“Given the second respondent’s findings about the applicant’s “significant ongoing psychological problems” and the cause of the problems, it was incumbent on her to address the prospect of psychological harm which the applicant might suffer in future in Sri Lanka on account of his Tamil ethnicity. …”
Counsel for the applicant submitted that the Reviewer was obliged to address a claim which arose from the materials and was obvious and relied upon the judgments of Young J in MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 at [38], and Lander J in SBTF v Minister for Immigration and Citizenship & Anor [2007] FCA 1816 at [38] in this regard.
Counsel for the first respondent relied upon Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 where the Court stated at [46] - [47]:
“[46] Counsel for the respondent urged upon us a proposition that once there was a finding that a respondent would be pressured to marry, it was necessary for the RRT, in order to complete the exercise of its jurisdiction, to consider whether he would succumb to that pressure.
[47] There are two answers to this. First, the respondent did not claim that he would succumb to any such pressure. Thus, the RRT was not obliged to deal with a hypothesis that was not raised; see Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Applicants S 134/2002 (2003) 211 CLR 441 at [31] – [32]. Second, any consideration of this hypothesis would involve speculation as to what the consequences may be. A well-founded fear cannot be based upon speculation. The evidence must indicate a real ground for believing that an applicant is at risk of persecution.”
Similarly, counsel for the first respondent referred to the judgment of Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 where Gleeson CJ said at [1]:
“Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some late stage in the process.”
Counsel for the applicant submitted that I should adopt the reasoning of Young J and Lander J because it post-dates the decision in SZANS. For my part, I am not satisfied that there is conflict between the decision of the Full Court in SZANS and those in MZWDG and SBTF.
It should be noted that all these cases, to a very substantial extent, turn upon their own particular facts. In my view, in substance, it is the Reviewer’s task to deal with those aspects of the applicant’s case that are articulated with sufficient clarity, or alternatively emerge with sufficient clarity, for it to be unjust for the Reviewer not to deal with them.
In this case, as counsel for the first respondent submits, and in my view correctly, the applicant never claimed the harm now articulated. His claim was that he was at risk of actual physical harm on account of his ethnicity and imputed political opinion if he was to be returned.
Although there was medical evidence before the Reviewer in the form of a report of Mr Coffey, neither the applicant, nor his advisers (he was legally represented throughout the entire process leading to the review decision) ever suggested that his experiences were such that he would suffer psychological harm in the event of being stopped at road blocks or the like.
Even though the psychological report would suggest, without much intellectual effort on the part of the Reviewer, that the applicant might be extremely apprehensive if stopped by any military checkpoint, the extent to which this was likely or otherwise takes this matter in my view into the realm of impermissible speculation.
I do not think that the Reviewer fell into jurisdictional error in failing to address an issue never articulated before her which in my view, in the particular circumstances of this application, was not articulated or otherwise sufficiently obvious for it to be unjust for the Reviewer not to have considered it.
Ground 2: Failure to consider economic harm
The parties advanced in many ways rather similar arguments in relation to this ground as they did in relation to ground 1 for obvious reasons.
Nonetheless, there is a critical difference. Unlike the claim of psychological harm, which was never articulated by the applicant and in my view did not emerge sufficiently from the materials to be required to be addressed, the Reviewer found, as I have earlier stated, that the applicant “is concerned that his injury may affect his ability to earn a livelihood in the future and provide for his family.”
The first respondent submits that even if the applicant had claimed that economic harm might give rise to some Convention nexus (which it is accepted he did not):
“… the question for the Reviewer was whether the applicant had a well-founded fear of persecution for a Convention reason. The findings of the Reviewer, that there was no real chance that the applicant would be persecuted in the reasonably foreseeable future for reasons of his ethnicity or imputed political opinion or for any other Convention reason, preclude any such claim.” - (paragraph 40 – first respondent’s submissions).
The difficulty with the first respondent’s submission in this regard is that in my view it puts the cart before the horse. True it is that the Reviewer found that the applicant did not face a real chance of persecution in the reasonably foreseeable future for reasons of ethnicity or imputed political opinion or for any other Convention reason. Nonetheless, the Reviewer simply did not consider a claim that was plainly in her mind as against the Convention definition. Article 1A2 of the Convention does not refer in terms to economic harm. Nonetheless, s.91R of the Migration Act 1958 (“the Act”) in defining serious harm includes significant economic hardship that threatens the person’s capacity to subsist.
In my view, the issue of economic harm, having been so clearly raised, should have been addressed. In my opinion, a failure to address this issue did give rise to jurisdictional error on the part of the Reviewer. As the applicant submits, the essential and significant reason for the claimed economic persecution, which the applicant feared he would face upon any return to Sri Lanka, was the injury to his arm which the Reviewer accepted had been inflicted on account of his Tamil ethnicity.
Ground 3: Failure to deal with the issue of imputed political opinion
This ground arises out of the fact that the applicant had been a passenger on a boat which docked at the port of Merak in Indonesia, and that media reports and publicity in Australia and Sri Lanka about the boat and its passengers, including the applicant, would give him an imputed political profile as a supporter of the LTTE or of opposition to the Sir Lankan government.
Put shortly, the Reviewer considered this claim and rejected it. It was a finding open to the Reviewer on the materials before her. Minds might differ as to whether it was the correct finding, but merits review of this sort is not the task of the Court in this case.
Ground 4: The failure to present country information to the applicant for comment
The complaint here is that the Reviewer's decision referred to various items of country information, not all of which were put to the applicant. In particular, complaint is made about the following extract from the decision at CB 161 paragraph 72:
“The claimant did not leave Sri Lanka illegally, he has some identity documents and is not a young man, so does not fit within these categories of people set out in the UNHCR guidelines who could be subject to greater scrutiny on return.”
The first respondent submits that the applicant had the RSA record which included, as part of the material before the RSA officer, the UNHCR Eligibility Guidelines and therefore had notice of them. Although the applicant complains that the RSA decision was never made known to and/or interpreted to him, I accept that he was legally represented throughout, and I accept the submission of the first respondent that the applicant and his advisers should have been aware of this information.
I further accept the submission of the first respondent that the material that the Reviewer did traverse with the applicant, in terms, touched sufficiently upon this issue to provide natural justice to the applicant.
If one looks at the transcript of the proceeding before the Reviewer at
p.23 - 24, the following was said about the Danish Immigration Service Report made in October 2010:
“It's a report that was made in October 2010. Now, it says that there isn't really an issue with people returning from abroad, that that doesn't seem to be something that puts people at risk. If they had no profile before and they've just come back from abroad, well then it doesn't seem to be a problem and it says that there's still abductions and killings going on in Sri Lanka, but they seem to be related to criminal activities. So someone is abducting people to get money or its criminal groups rather than being related to politics and being related to accusations of, you know, being in politics.
It says that there is a large presence of the army in the north and they are checking people, but there doesn't seem to be reports of people being indiscriminately targeted or someone with your profile would have that many difficulties.”
It should be noted that the Reviewer dealt with this matter in an exemplary fair way, adjourning the hearing to give the applicant an opportunity to talk to his adviser about it. I note that when the matter resumed, no further submissions appear to have been made in response to the matters put as to country information.
While it is true that the UNHCR Guidelines are more specific than the general proposition put by the Reviewer, the indication put by the Reviewer, in my view, was sufficiently fair in all the circumstances (including the applicant's legal representation and the earlier identification of the UNHCR Guidelines in the RSA process) to ensure that procedural fairness was met.
Conclusion
As indicated previously, I have upheld one of the grounds of the applicant's claim and I will therefore make the declaration that he seeks.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 5 April 2012
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