MZYPM v Minister for Immigration - [2012] FMCA 220

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYPM v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 220

MIGRATION – Review of Independent Merits Review – refusal of a protection visa – no matter of principle – application dismissed.

Migration Act 1958

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; [2003] 75 ALD 630
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
S395/2002 v Minister for Immigration and Multicultural Affairs (2003), 216 CLR 473; [2003] HCA 71

Applicant:

MZYPM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

THE INDEPENDENT MERITS REVIEWER

File Number:

MLG 1124 of 2011

Judgment of:

Riethmuller FM

Hearing date:

22 February 2012

Date of Last Submission:

22 February 2012

Delivered at:

Melbourne

Delivered on:

22 February 2012

REPRESENTATION

Counsel for the Applicant:

Mr McIntyre of Counsel

Solicitors for the Applicant:

Asylum Seeker Resource Centre

Counsel for the Respondent:

Mr Mosely of Counsel

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application filed on 3 August 2011 be dismissed.
The Applicant pay the First Respondent’s costs fixed at $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1124 of 2011

MZYPM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

THE INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(as revised from the transcript)

This is an application for judicial review with respect to a decision of a Reviewer appointed by the Minister in respect to an application for a protection visa. The applicant arrived by boat from Sri Lanka. He is of Tamil ethnicity and is fearful of returning to Sri Lanka primarily on the basis of his ethnicity and religion.
The decision was made by the Reviewer after an oral hearing, and written materials were placed before the Reviewer by an agent assisting the applicant. Ultimately, a decision by way of a report was made on 30 June 2011 recommending against recognising that the applicant was a person to whom Australia had protection obligations.
The grounds of review in this case are not set out in the application. The applicant focused on the part of the decision that deals with his claim that he was at risk of persecution as a result of his religion – that is, that he is a Christian, and that Sri Lanka is a predominantly Buddhist country, also with a Hindu population. The applicant cast his grounds in the following terms in his outline of case document:
[5] The applicant submits that the IMR report contains elements of jurisdictional error, namely:
(a) The reviewer failed to consider the possible risk to the applicant of persecution on a day to day basis, from avenues aside from being identified as Tamil at or immediately following his return to Sri Lanka;
(b) The reviewer fell into error by finding as a fact that people who identify themselves as Tamil and/or Christian could impose self-limitations on their movements, thereby minimising their risk of exposure to persecution;
(c) The reviewer fell into error by failing to give proper consideration to the risk to the applicant of persecution based on his religion; and
(d) The reviewer fell into error by failing to properly consider the country information and submission put forward by the applicant through his adviser.
The argument proceeded on the basis that, in substance, it was an integer claim that the Reviewer had failed to properly deal with the claim of risk of persecution on the basis of the applicant’s Christian faith. However, the Reviewer did turn to this issue and specifically discussed it at paragraph [42] of the decision. The Reviewer said:
[42] However, his adviser has claimed (and he also in his Statutory Declaration) that he fears persecution for reason of his religion. Neither he nor his adviser mentioned this claim to me and his history does not include any incident which could be called persecution for reason of his being Christian. At his RSA interview, he said he attended a church close to his home in an area where there were Christians, Hindus and Buddhists. He did not then mention any problems of any significance arising from his religion. Accordingly, I do not accept that there is a real chance of the claimant being persecuted for reason of his religion.
I accept that the past is not the sole determinant of the future and, certainly, in some aspects of life the past is no determinant of the future (one only needs to turn to the mathematics of probability with a dice to realise that the past is no prediction of the future). However, in human affairs the past is often a good guide to the future, and is an important aspect of predicting the future. Even if the past, of itself, does not allow for a prediction, the facts and circumstances that presently exist, and past facts and circumstances, are the material that one must rely upon in considering any risks into the future. In this regard, as the applicant argues, the past is not the sole determinant (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1 at paragraph [51]).
The argument was developed on the basis that the Reviewer ought to have turned to the country information which was provided in writing by the applicant’s adviser. This is in the court book at page 100, book 2, at page 101.
The country information refers to a number of different reports about difficulties that Christian groups have had within Sri Lanka. The issues reported seem to arise around forced conversions, or allegations of forced conversions, to Christianity being the motivating feature for Buddhist extremists or Buddhist nationalists to attack Christians or Christian churches. That is, that the potential threat is not to all Christians but those involved in those particular activities.
The material put forward by the applicant gives no evidence of him being involved in any of the Christian denominations referred to in the country material, nor to him being involved in a church that had been the subject of any threats or attacks, or a congregation in such a situation.
The country material also refers to some material that may be interpreted as showing that charity work would be seen by some in Sri Lanka as a form of coercion towards a change of religion. However, there is no evidence that the applicant has actually been involved in any charity work with his church or religion, or of the kind referred to in the articles.
The articles also refer to some difficulties in country areas. The applicant says that he comes from a country area (the name of the town being contained in the review decision) and that he has family that are living in Jaffna (see paragraph [43] of the review decision). But there is no evidence that in the area in which he had lived, (in the rural area), that there had been any attacks or difficulties.
The argument was that there remains a general risk to the applicant as a person who follows the Christian faith living in Sri Lanka. The Reviewer has turned their mind to this when concluding, at the end of paragraph [42], that it was not accepted that “...there is a real chance of the claimant being persecuted for reason of his religion”.
This indicates that the Reviewer had turned their mind to the element of risk or chance of persecution and determined that there is not a real chance. As Counsel for the Minister argued, it is not sufficient to look at generalised risks in cases of this type. The applicant needs to show that he, as an individual, is at risk, and there is nothing in the material to indicate that there is anything about his circumstances to show that he personally was, or is, at risk in this case. In these circumstances I am not persuaded that the applicant has established a successful ground under items (a) or (c).
Ground (b) relies upon the proposition that it is improper to decide a refugee application on the basis that a person could return to their country of origin if they lived discreetly, or control their behaviour so as not to come to adverse attention: this is explained in the decision of the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs (2003), 216 CLR 473; [2003] HCA 71, in particular at paragraph [43].
In this case there is no specific evidence of a need to live discreetly, or the applicant having lived discreetly, other than for a period when the applicant went into hiding some time ago. The decision of the reviewer contains the following:
[29] After a break in the interview, the claimant’s representative clarified some details which had arisen in discussion and said that his family was constantly monitored; their movements were monitored; and they lived in a controlled environment.
It was argued that from paragraph [29] one could infer that, in this environment, there would be self-limiting behaviours engaged in by the applicant and that, therefore, the Reviewer has fallen into error by not either dealing with that, or not applying the principles set out in S395/2002 v Minister for Immigration and Multicultural Affairs (2003), 216 CLR 473; [2003] HCA 71.
The Reviewer’s decision identified the problems in the past, but dealt with the current risk to the applicant. The fact that he was in hiding in the past does not appear to be directly relevant to the current circumstances, and it is clear that the decision did not proceed on the assumption that he would have to go into hiding if he returns to Sri Lanka now.
I am not persuaded that the terms of paragraph [29] are sufficient to infer that, in these circumstances, the applicant was, in fact, living a modified lifestyle to avoid coming to the attention of the authorities. Indeed, if he were, it would have been a simple matter for him to provide some evidence to the Reviewer, or in the written material, to support the proposition, particularising any of the things that he said he did to modify his behaviour. In the circumstances, I am not persuaded that this is a ground that can succeed.
The final ground, ground (d), proceeds on the argument that because the country information that is referred to by the decision-maker is not any of the country information put forward in submissions by the applicant, that the decision-maker has erred in failing to have regard to the relevant country information or properly considering the material before the reviewer.
It’s well-established that a decision-maker, whether administrative or judicial, is not required to identify and outline every piece of evidence and every submission that is made before a tribunal or court. It would make the whole of the decision-making system, both administratively and judicially, unworkable. If that were the case every judgment would run for hundreds of pages, setting out all of the material that was before the decision-maker.
In this case, the question of country information was clearly the subject of submissions, and the decision-maker has identified, in paragraph [20], that they have had regard to that material, saying:
[20] One submission was received from the claimant’s advisers on 24 April 2010 and another, undated, in relation to the Review request. Both have been considered in the course of this review.
The country information of the applicant is of a different hue to that that the Reviewer has relied upon ultimately, but it is not such that one could identify specific pieces of it that were so significant one would conclude that their omission from the ultimate decision demonstrates that the Reviewer has failed to have regard to them. Indeed, at the beginning of the section relating to country information the Reviewer refers to material from the UNHCR, and although a different report, I note that the commencement of the country information submission of the applicant also starts with references to UNHCR material. Thereafter, the country information relied upon by the applicant is weighted in favour of more popular media and internet material, and the material relied upon by the Reviewer is more material of government agencies, although not entirely that.
I note that the Full Court of the Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 said:
[12] The appellants’ submissions asserted that the Tribunal rejected all of the appellants’ claims on the basis of ‘country information’. The Tribunal’s reasons for decision do not substantiate this assertion. It is plain that the Tribunal relied to a substantial extent on the inherent improbability of some aspects of the first appellant’s story, inconsistencies between different parts of his story, and the fact of his frequent returns to Sri Lanka and the length of his sojourns there, to form its views about his credibility. In turn, it relied on its assessment of the first appellant’s credibility in determining whether it accepted some of the ‘country information’. Its treatment of the DFAT advice about Tamil males from Batticaloa, to which we have referred in [4], is an example. The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin.
[13] In performing its function, the Tribunal was obliged to make an assessment of the circumstances in Sri Lanka in the reasonably foreseeable future. See Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) [1993] FCA 545; (1993) 47 FCR 1 at 66. It had to assess whether there was a real chance of persecution of the appellants for a Convention reason if they were to return to Sri Lanka. The appellants complained in their written submissions that the Tribunal engaged in this exercise at all. In his oral submissions, the first appellant said that it was a legal error to base a conclusion on a hypothesis about what might happen in the future. These submissions cannot be accepted. The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a ‘mere guess’ and by relying on ‘country information’ that did not present a true picture. It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
[14] In their original application for a protection visa, the appellants placed before the Minister’s delegate ‘country information’ of their own, from a variety of sources. The Tribunal appears to have had this material before it, by way of the file of the Department of Immigration and Multicultural and Indigenous Affairs. The appellants’ submissions to this Court complained that the Tribunal did not comment on this material. The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.
Similar comments have been made in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; [2003] 75 ALD 630. In the circumstances of this case I am not persuaded that the material is sufficient to show that the reviewer has failed to have regard to that material, or take it into account.
The final point that was raised at paragraph [20] of the applicant’s outline was the claim that he was potentially at risk on a return journey to his residence in Sri Lanka. There were no claims of this risk put forward by the applicant on the material. Therefore, there was no reason for the decision-maker or Reviewer to specifically deal with this and, for these reasons, I am not persuaded that this can be a successful ground.
Accordingly, I dismiss the application.

[Further argument ensued]

Costs in matters of this type ordinarily follow the event. Impecuniosity, of itself, is not a reason to make a different costs order. The respondent has been entirely successful in the proceedings. The material put forward in the argument does not demonstrate issues of public policy or other factors that might weigh against costs following the event, as ordinarily occurs in litigation. In the circumstances, I am persuaded that a costs order should be made. The scale fee is the appropriate fee in this case. I therefore make Orders accordingly.

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

Date: 27 March 2012