MZYNK v Minister for Immigration
[2011] FMCA 994
•18 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYNK v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 994 |
| MIGRATION – Independent Merits Review – offshore applicant – whether all claims considered – whether denial of procedural fairness. |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 123 ALD 244; (2010) 272 ALR 14; (2010) 85 ALJR 133; [2010] HCA 41 |
| Applicant: | MZYNK |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | LUKE HARDY IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 826 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 18 November 2011 |
| Date of Last Submission: | 18 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 18 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Counsel for the First Respondent: | Warren S. Mosley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 9 June 2011 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 826 of 2011
| MZYNK |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
And
| LUKE HARDY IN HIS CAPACITY AS THE INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
This is an application for review of a decision of the Independent Merits Reviewer. The applicant is of Tamil ethnicity. He is a citizen of Sri Lanka. He arrived by boat on Christmas Island on 1 March 2010. He made a refugee status application on 7 June 2010. On 24 June 2010, an officer of the Department of Immigration and Citizenship refused the application. On 27 July 2010, the applicant sought review by the Independent Merits Reviewer. On 21 April 2011, the reviewer recommended that the applicant not be recognised as a person to whom Australia owes protection obligations. The applicant filed an application on 9 June 2011 seeking judicial review.
The applicant said in a statutory declaration made on 7 May 2011, in support of his initial application, that:
a)he moved with his family from Jaffna to Vanni in 1996;
b)they moved back to Jaffna in 2002;
c)in 2003, his brother, S, was detained for a day and badly beaten because his ID was issued in Vanni;
d)in 2005, his brother, G, was detained for 10 hours, questioned and beaten, after a claymore bomb exploded;
e)in 2006, the applicant opened a restaurant with his brother, S;
f)on 13 February 2007, S went to the shops and did not return;
g)people said that S had been taken by the army;
h)the family lodged complaints but the army denied taking S;
i)in May 2009, the applicant’s mother went to an EPDP camp, where the people said she could see S if she paid 200,000 rupees;
j)the family paid the money, but they were not shown S;
k)when the mother demanded the money back, the people threatened to kidnap the applicant or his sister;
l)on 22 February 2007, the applicant’s restaurant was burned down;
m)the applicant saw two men in army uniforms throw petrol at the shop and set it ablaze;
n)in 2009 the applicant’s friend, K, was kidnapped by men in military uniform;
o)on 6 July 2008, the applicant’s friend, GS, was shot dead in front of his house by unidentified people;
p)in December 2009, two men in civilian clothes came to the applicant’s house, put a gun to his head, and said they would kill him unless they were paid 1 million rupees in two days;
q)the applicant thought the people were from the EPDP;
r)the family sold jewellery and gave people 500,000 rupees; and
s)the applicant went to stay with an aunt before departing from Sri Lanka.
The applicant said in his statutory declaration, made on 7 May 2011, that if he returns to Sri Lanka he fears being kidnapped, detained or killed by the Sri Lankan authorities, the army or the EPDP. He said he was a young Tamil male from Jaffna who had spent time in Vanni. He said people with his background are suspected of being in the LTTE and targeted by the government.
The applicant elaborated on his claims in the refugee status assessment interview. He said that since he had arrived at Christmas Island, his mother had told him by telephone that the EPDP had telephoned her and asked where the applicant was. They were unaware that the applicant had left Sri Lanka. They said they would abduct him.
The applicant said that his mother had telephoned the EPDP and demanded they produce her missing son, S. They said that if the applicant’s mother did not stop harassing them, they would take the applicant.
The applicant’s advisor stated that the applicant was convinced that it was the EPDP operatives who put a gun to his head because that is how they operate.
In a submission dated 4 September 2010 to the Independent Merits Reviewer by the applicant’s adviser, the applicant claimed that he feared persecution for reasons of imputed political opinion, being suspected association with the LTTE, and race, being Tamil ethnicity.
The applicant said in his interview with the reviewer that he feared being shot at the airport by the army or the police if he returned to Sri Lanka.
The reasons of the Independent Merits Reviewer
In the reasons for his recommendation, the reviewer said that he had had regard to all of the country information provided by the applicant and referred to in the refugee status assessment. The reviewer also said that he had had regard to, and set out extracts from, the UNHCR guidelines on assessing asylum seekers from Sri Lanka.
The reviewer accepted that the applicant was a young Tamil male from Jaffna who had spent some years in Vanni. However, the reviewer did not consider that these circumstances led to the applicant facing a real chance of serious harm.
The reviewer accepted that the applicant’s brother, G, had been detained and questioned in relation to a claymore bomb, and had since moved to India to live. However, the reviewer did not accept that the applicant faced a real chance of serious harm for any reason arising from his link to G.
The reviewer accepted that the applicant had a sister living in the United Kingdom. However, the reviewer did not consider that the applicant faced a real chance of serious harm for that reason.
The reviewer accepted that the applicant and his brother, S, opened a restaurant in 2006. The reviewer accepted that the applicant’s brother, S, disappeared on 13 February 2007. The reviewer considered that he may have been killed by the army at a time when the Sri Lankan army was quite arbitrary in its mistreatment of Tamil youths. The reviewer considered that the applicant’s more recent claim, that the EPDP was involved in the abduction of S as part of a plan to lure the applicant and his brother into captivity, was recent invention.
The reviewer considered the abduction of S to have been an isolated event of no significance to the applicant’s prospects of harm. The reviewer did not accept that the army had threatened to abduct the applicant if his mother kept asking about her son, S.
In connection with the December 2009 extortion incident, the reviewer expressed considerable concerns about the applicant’s reliability as a witness. However, the reviewer considered that even if people had attempted to extort money from the applicant at gunpoint, it would have been an isolated act of criminality. It was not undertaken for a convention reason and it was not undertaken by the army or the EPDP. The reviewer considered that there was not a real chance of such an event occurring to the applicant in the foreseeable future.
The reviewer did not accept that the applicant faced a real chance of being shot at the airport if he returned to Sri Lanka.
The reviewer accepted that the applicant’s business had been burned down. However, as that event happened during the civil war, which has now ended, the reviewer considered that it was not indicative of the applicant facing a real chance of persecution.
The reviewer accepted that the applicant had friends who were killed or went missing during the civil war. However, the reviewer did not accept that those events led to the applicant facing a real chance of persecution in the foreseeable future.
Ground of review
The single ground of review in the application filed on 9 June 2011 is:
That the decision of the second respondent, the Independent Merits Reviewer, was affected by legal error.
The applicant did not provide any particulars of this ground in his application, nor did he file a statement of facts and contentions. The applicant was not represented throughout the proceedings in this court. He said in oral submissions before the court today that there were certain errors in the reviewer’s decision. He said, in general terms, that he was not given natural justice. In particular, he said that his submissions were not taken into account. The applicant said that there were many interpretation and language errors and that his agent did not include everything that the applicant had told him.
In relation to the issue of his submissions not being taken into account, the applicant said that the reviewer had rejected his application on the basis of country information. It is for the reviewer to consider all of the material before it and form its own view of that material. It is not for this court to say that the reviewer should have taken a different view of the country information. I am unable to detect any denial of natural justice in relation to country information. The applicant also said that his submission that his brother was abducted for political reasons was not taken into account. The applicant said that the reviewer thought that the brother had been abducted for money. However, that misunderstands the reviewer’s reasons. The reviewer actually said it was most probable that the brother had been abducted by the army at a time when the army conducted itself in an arbitrary manner towards Tamil youths.
The applicant said to the court today that there were many problems with the review process and that the reviewer did not do a proper job. The applicant said that one of those problems was that there were interpretation errors during the hearing before the reviewer. The only error the applicant was able to point to was the question of his brother’s abduction.
The applicant was mistaken, as I have previously mentioned, in relation to this matter. He was under the impression that the reviewer had said that his brother was abducted for money when, in fact, the reviewer said that he was probably abducted by the army. The applicant also said that the reviewer had said that the business was burned down by people who were jealous. In fact, the reviewer said that the fire occurred in the context of the civil war. The applicant then submitted that the atrocities in Sri Lanka were continuing. That is not a matter that this court is able to take into account.
The applicant asked the court to organise a correct interpretation of his evidence to the reviewer. Unfortunately, the court is not able to assist in that regard. In any event, there does not appear to be any difficulty with the interpretation. The applicant was represented in his initial application to the department and before the reviewer by a migration agent, Vrachnas Lawyers. They did not raise any complaint about interpretation during the interview with the reviewer, nor did they raise any issue about the interpretation between the interview and the handing down of the reviewer’s recommendation.
The applicant said that the reviewer did not consider the real threat that he faced. However, a fair reading of the decision of the reviewer indicates that the reviewer considered the material that was put to him in a good deal of detail and with considerable care.
At the hearing before this court, the applicant was told that the High Court, in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia (2010) 123 ALD 244; (2010) 272 ALR 14; (2010) 85 ALJR 133; [2010] HCA 41, said that in making a recommendation, a reviewer must consider all of the applicant’s claimed bases of persecution. The applicant was asked if he considered that the reviewer had failed to consider any claims, submissions, or evidence. The applicant said he would have given further material to the reviewer if he had been asked.
The reasons of the reviewer at CB116 and CB117 indicate that the hearing before the reviewer included a 20 minute break to enable the applicant to confer with his adviser. The reasons also indicate that the applicant was offered a fortnight to make further submissions after the hearing ended. However, the applicant did not provide any post-interview submissions.
The applicant said that during the 20 minute break in the interview with the reviewer that his lawyer simply instructed him to not say anything about country information but to focus on his personal circumstances. The lawyer himself made oral submissions and provided written submissions about the general situation in Sri Lanka. There does not appear to be any flaw in the advice that the lawyer gave.
The applicant also said that his agent did not include everything that the applicant had told him. The applicant did not point to any particular matters that he raised with his lawyer but which the lawyer failed to convey to the reviewer. There is no reason to believe that Vrachnas Lawyers did not properly put the applicant’s case to the reviewer.
I am unable to detect any relevant error in the recommendation of the reviewer. In all the circumstances the application must be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Riley FM.
Date: 15 December 2011
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