MZYRD v Minister for Immigration
[2012] FMCA 219
•23 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYRD v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 219 |
| MIGRATION – Review of decision of Independent Merits Reviewer – offshore entry person – applicant of Tamil ethnicity from Sri Lanka – alleged imputed connection with the Liberation Tigers of Tamil Eelam – no denial of procedural fairness – no failure to put relevant country information – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth), ss.5, 476, 477(1) |
| Dravichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 Re Minister for Immigration and Citizenship & Anor; Ex Parte Miah (2001) 206 CLR 57 |
| Applicant: | MZYRD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | MLG 1272 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 21 February 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 23 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms McCarthy |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
THE COURT ORDERS THAT:
The application made on 1 September 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 1272 of 2011
| MZYRD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| SUE ZELINKA IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
By amended application filed 9 December 2011, the applicant sought judicial review of a recommendation of the second named respondent that the applicant not be recognised as a person to whom Australia has protection obligations pursuant to Article 1A(2) of the United Nations 1951 Convention Relating to the Status of Refugees, and the 1967 Protocol Relating to the Status of Refugees (the ‘Refugees Convention’). The applicant brings his application pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’). The applicant seeks both injunctive and declaratory relief. He seeks a declaration that Ms Zelinka’s report is affected by legal error and injunctive relief to prevent the Minster and his Department from relying on it.
There are three grounds in the amended application. First is that the Independent Merits Reviewer (‘IMR’), Ms Zelinka, failed to consider an integer of the applicant’s claim namely that he was a young Tamil male with accepted connection to the Liberation Tigers of Tamil Eelam (‘LTTE’), by reason of his forced period of volunteering, who would attract the adverse attention of the authorities upon being forcibly returned to Sri Lanka; second is that Ms Zelinka failed to accord the applicant procedural fairness by relying on country information without giving the applicant an opportunity to comment on it; and third is that Ms Zelinka denied the applicant procedural fairness by failing to take into account the delay from his original claim to the time of decision and the fact that he had to re-tell his story on multiple occasions. This third error claimed was also described as the Independent Merits Reviewer making findings for which there was no evidence. Each of these grounds was said to involve jurisdictional error on the part of the decision-maker.
Background
The applicant is an offshore entry person as described in s.5 of the Act. He arrived at Christmas Island, by boat, on 7 February 2010. He is a citizen of Sri Lanka. He is of Tamil ethnicity and Hindu religion.
The applicant was born in Jaffna. He remained living in Sri Lanka, which included for a substantial period of time living in refugee camps and ultimately an army camp, until his departure from Negombo via Colombo for Australia on 20 January 2010.
The applicant claims he left Sri Lanka because of his fear that he would be persecuted by the authorities as a consequence of his being a young male Tamil from the Northern Province whom the authorities continue to believe has an involvement with the LTTE.
The applicant was interviewed at Christmas Island upon his arrival on 7 February 2010 (this was an ‘entry interview’). On 18 April 2010, the applicant made a request for a Refugee Status Assessment (‘RSA’) and on 20 April 2010, the applicant was interviewed for the purposes of the RSA. By decision dated 9 July 2010, the delegate of the first respondent recommended that the applicant was not a refugee. On 21 July 2010, the applicant first filed an application for Independent Merits Review of the delegate’s decision. On 8 September 2010, the Applicant was interviewed for the purposes of an Independent Merits Review. By decision dated 1 November 2010 his application for Review was rejected, of which the application was notified on 2 November 2010.
On 22 December 2010, the applicant was notified by the first respondent by letter dated 22 December 2010 that the High Court of Australia had determined that certain aspects of the Independent Merits Review process were legally flawed and that that process was subject to judicial review. Further, he was advised that no arrangements would be made to return him to Sri Lanka unless the applicant elected not to participate in a second Independent Merits Review.
Thus, as a result of the decision in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41, and on 12 June 2011, a further Independent Merits Review interview was undertaken by the second respondent in respect of the delegate’s recommendation of 9 July 2010. The decision record is dated 25 July 2011. The IMR recommended that the applicant not be recognized as a person to whom Australia had protection obligations under the Refugees Convention. The applicant was notified of that report and recommendation by letter of 8 August 2011 and filed his initiating application to this Court within the time limit provided for in s.477(1) of the Act.
It is the function of the Court when hearing an application of this type to consider whether the report of Ms Zelinka reveals any error of law. That error was described by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 in the following terms:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
Such an error of law includes a denial of procedural fairness. It is not, however, the function of the Court to undertake a merits review of Ms Zelinka’s findings. In examining the findings and reasons of Ms Zelinka for legal error, the Court does not read such statement of reasons “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291).
The Independent Merits Review
Statement of Reasons
The applicant claimed, and the IMR accepted, that the applicant:
a)is of Tamil ethnicity and a Sri Lankan;
b)lived with his family in Jaffna and that his family were forced to move during civil strife to refugee camps: the first in Jaffna, and the second, from 1996 to 2008, in Mannar which was controlled by the LTTE. The applicant assisted his brother with his grocery stall until the latter’s return to Jaffna in 2001. Thereafter, the applicant, who remained in the camp with his parents continued a small business buying vegetables from local farmers and selling them on;
c)was forced to do volunteer training and ‘some non combatant work’ by the LTTE and forced into an LTTE camp for training in non-combatant duties and that he went on several of these training trips;
d)was, with his parents, placed in a Sri Lanka Army camp in May 2009 and then separated from his parents and held for 24 hours by the Sri Lanka Army. He was questioned and hit (by them), the IMR noting the independent evidence which indicated that the Sri Lanka Army was not a great respecter of human rights, especially in the period at the end of the war. The applicant was then released after questioning.
The IMR also found that, contrary to the applicant’s claims:
a)the applicant had not run another business (additional to the business he ran with his brother) between 2003 and 2006 inclusive of running supplies to the LTTE;
b)there was no adverse repercussions for the applicant or his family as a result of his “volunteer training”, and that the applicant did not go into hiding in the jungle nor was his father held hostage by the LTTE;
c)the applicant is not of adverse concern to the authorities for reason of an imputed connection to the LTTE, nor “of interest to the authorities for reason of his being a young Tamil male from the north”;
d)the applicant does not have “clear LTTE profile” given “he was interrogated and released by the authorities in an SLA camp at the end of the war and has since passed checkpoints with no problems”;
e)the chance that the applicant will face persecution as a failed asylum seeker returning to Sri Lanka is remote;
f)the fact of being a failed asylum (seeker) from Australia is not an indication that harm will befall the returnee … and that further there is nothing in the information which indicates that the claimant is at risk of persecution for having left his country illegally;
g)“young Tamil males from the north” no longer constitute a particular social group at an elevated risk of persecution.
Country Information
Under the heading “Country Information” Ms Zelinka set out in her statement of reasons a number of sub-headings being “Post-war dealings with LTTE”, “Forced conscription to LTTE”, “Police”, “Conditions in the north”, “Kilinochchi district”, “Freedom of movement”, “Documentation”, “Treatment of returned failed asylum seekers”, “Update on failed asylum seekers returning to Sri Lanka”, “Relevant history” and “Discrimination against Tamils”. Various news reports, press releases, letters, country reports and international group reports were referred to. Included under the heading “Update on failed asylum seekers returning to Sri Lanka” was the following:
“NOTE: during the course of writing this decision, the UK Border Agency has issued a new Country of Origin Information Report: Sri Lanka, published in July 2011. The material above is still included, indicating it is still current, but further material has been included as follows:
25.37 Human Rights and Security Issues concerning Tamils in Sri Lanka, Report from Danish Immigration Service’s fact-finding mission to Colombo, Sri Lanka 19 June to 3 July 2010, dated October 2010 reported:
“As regards, the authorities’ entering procedures for returnees, including returned failed asylum seekers in the Colombo Airport, Mr. W. A. Chulananda Perera, Acting Controller General, Department of Immigration and Emigration (DIE) explained that the returnee can enter the Sri Lankan border with either a national passport or an Emergency Travel Document issued by the Sri Lankan Embassy. If the returnee enters with a national passport, DIE can check the data in a database. Entry with an Emergency Travel Document does not give this possibility. However, an Emergency Travel Document is considered a proof of identity established in the country of departure. DIE registers the details of all returnee, including travel documents, flight numbers and country of return in a register that all law enforcement agencies are given access to.”
“A diplomatic mission said that the vast majority of Tamils returning at the moment are facing a minimal risk for undergoing a scrutiny at the airport. The source commented that the way people will be screened today seem to be the result of improved intelligence, also exchange of intelligence between countries in Asia. People with a clear LTTE-profile or people suspected of money transfer would be detained for further investigations. According to the source there is in general no difference in the way Tamil and Sinhalese people are treated at the airport, and there are also examples of Sinhalese human rights defenders who have been detained for investigations.”
25.38. The Danish FFM report further noted: “UNHCR stated that Colombo has a mixed population and that the general human rights situation in Colombo as regards living conditions, access to employment and education should not pose systematic problems to Tamils.”
“According to the Norwegian Embassy, [in Colombo] a returnee from abroad would not be visible in the community, and it would not be a problem to find housing and a job.”
and subsequently as a part of the findings and reasons the IMR included the following:
“I also note recent information (January 2011) from the British High Commissioner in Sri Lanka that “the Sri Lankan authorities … do not appear to be actively looking for further LTTE suspects but there are still large areas of the north and east of the country where demining and the search for caches of weapons/ordinance are being undertaken. When finds occur, then anyone linked to that building of land immediately comes under the scrutiny of the military”. (Para. 4.12, UK Border Agency, July 2011, see citation on page 24 above).”
The applicant claims with respect to the Danish Immigration Service’s fact-finding mission that he was denied procedural fairness because the IMR relied upon a report that was not published at the time of interview. The interview occurred in June 2011 and the report was published in July 2011. However, the parts of the report relied upon by Ms Zelinka pre-dated the hearing and were referred to by the applicant’s agents in their submission to the IMR. Thus, the applicant was not only aware of the report but had addressed it in support of his application in correspondence from his migration agent dated 14 February 2011. The inclusion of the subsequent report which pre-dated the hearing (being January 2011) in the reasons of Ms Zelinka, and which is also referred to in paragraph 13 herein, was claimed by the applicant to have been relied upon by the IMR and not put to him to enable him to make a meaningful response. However, this country information was irrelevant to the findings and conclusions of Ms Zelinka. It concerned the authorities search for caches of weapons/ ordinance being undertaken and noted “where finds occur, then anyone linked to that building or land immediately comes under the scrutiny of the military.” This information was not new or unforseen in the circumstances and did not have any significance to the decision. The IMR had already determined, based on other country information and the totality of the evidence before her, that the applicant was not an LTTE suspect. The IMR relied upon the UK Border Agency report of November 2010 which she explained and put to the applicant and in her reference to the updated report she noted that the situation for failed asylum seekers had improved further. She had earlier determined that the applicant was of no interest to the authorities. I am satisfied that an opportunity was given to the applicant with respect to all country information adverse to his claims that was “credible, relevant and significant to the decision” (Re Minister for Immigration and Citizenship & Anor; Ex P Mich (2001) 206 CLR 57 at 96-97 [140] per McHugh J).
Denial of procedural fairness
The applicant was interviewed on 7 February 2010 when he first arrived at Christmas Island, on 20 April 2010 for the RSA, on 8 September 2010 at an Independent Merits Review and again on 12 June 2011 for his further Independent Merits Review. On each occasion he was in immigration detention. The applicant contends that the delay in interview and the fact that this was his third interview (following the entry interview) in relation to the circumstances of his application should have been taken into account when assessing his credibility, and that Ms Zelinka’s failure to do so resulted in a breach of procedural fairness. In support of that claim the applicant referred the Court to the decision in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470. In that case, there was a delay of approximately 4.5 years from the initial hearing to the ultimate decision and there were two hearings separated by periods of years. I note this history or a similar one is not the case in this proceeding. It cannot be argued that there was a delay, so unreasonable, that is “created a real and substantial risk that its (the Tribunal) own capacity for competent evaluation was diminished…” (NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at paras 9-10 per Gleeson CJ). That authority is simply not applicable to the decision of the IMR here.
It is not the function of this Court to overturn the credit findings of Ms Zelinka. Under the heading “Findings and Reasons” Ms Zelinka said the following (on page 26):
“Credibility is difficult to assess and should not be decided upon by demeanour or reaction at interview alone. However, where there are clear inconsistencies or where some claimed history is fanciful, far-fetched or unrealistic it may be that those claims, after careful consideration, cannot be accepted as being true. In the case of this claimant, I note that parts of his testimony were implausible and could not be explained satisfactorily despite plenty of opportunity to do so. I note that some claims were of recent origin and seemed design (sic) to bolster his case for refugee status. I also note that much of his testimony is not supported by reliable independent evidence, and when this evidence was put to him, he merely re-asserted his own beliefs. Overall, the testimony was not entirely credible.”
Thereafter she went on to set out, on the basis of the evidence before her, those claims of the applicant which she accepted and those which she did not for the reasons given in her statement of reasons. Throughout she questioned the applicant as to his claims and repeatedly put to him those instances where she found his testimony to be implausible so as to give him an opportunity to respond. Critical issues were put to the applicant by Ms Zelinka and he was placed in a position where he could meaningfully respond. There was no unfairness in the procedures adopted by the Reviewer in this regard. The Reviewer did not fail to take, that which she should, into account. She considered the period of detention and its impact on the applicant in the following passage (on page 31):
“I have considered the claims of the claimant both individually and cumulatively, taking into account the most recent and reliable independent evidence. I have considered the remark made by the adviser at the end of the hearing, that the claimant may be suffering a deteriorating mental state rather than simply stating things that are not true. I note that the claimant engaged in the hearing in (sic) an apparently normal manner, putting forward his testimony and answering questions. There was nothing in his speech or his manner to suggest any impairment. There is no reference in any file notes from case management which gives rise to any doubts about the claimant’s mental (or physical) competence. The claimant himself did not suggest the point made by the adviser, nor give it any weight. I conclude that he (sic) adviser was simply trying to explain away the many contradictions, inconsistencies and implausible statements in his client’s testimony.”
No jurisdictional error has been committed by the IMR in this regard.
A failure by the IMR to respond to a substantial, clearly articulated argument relying upon established facts may constitute a denial of procedural fairness and jurisdictional error (Dravichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at (24)). However, there was no such error here. The claims made by the applicant were considered carefully by the IMR and findings made, available on the evidence before her. Ms Zelinka concluded that the applicant was not of adverse interest to the authorities for reason of any imputed connection with the LTTE and nor did he have a LTTE profile when viewed by the authorities. That ground as claimed by the applicant in these proceedings must also fail.
For the above reasons the application will be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 23 March 2012
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