MZYXM v Minister for Immigration - [2012] FMCA 217

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYXM v MINISTER FOR IMMIGRATION

[2012] FMCA 217

MIGRATION – Review of delegate’s decision – Refugee and Humanitarian (Class XB) visa – no failure to take into account a relevant consideration – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth) ss.31(3), 65(1)

Migration Regulations 1994 (Cth) regs 1.12AA(1), 2.01, 2.03(1)

Minister for Immigration and Citizenship v MZYHS [2011] FCA 53
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
Norvill & Anor v Chapman & Ors (1995) 57 FCR 451
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

Applicant:

MZYXM

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

MLG 1382 of 2011

Judgment of:

Hartnett FM

Hearing date:

19 March 2012

Delivered at:

Melbourne

Delivered on:

4 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Gibson

Solicitors for the Applicant:

Wimal and Associates Solicitors

Counsel for the Respondent:

Ms Szydzik

Solicitors for the Respondent:

Australian Government Solicitor

THE COURT ORDERS THAT:

The application filed 23 September 2011 is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $6,240.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1382 of 2011

MZYXM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the respondent by his delegate dated 26 August 2011.
The delegate found that the applicant did not satisfy the requisite criteria for a Refugee and Humanitarian (Class XB) visa and determined not to grant the applicant such visa. The applicant claims in application filed 23 September 2011 that the decision was affected by jurisdictional error and seeks a declaration to that effect and consequent orders. In essence, the applicant claims through her counsel that the decision maker failed to address or deal with a claim, or an element or integer of a claim, that was advanced by the applicant. The respondent, in a response filed 12 January 2012 sought that the application be dismissed and the applicant pay the respondent’s costs of the proceeding. The grounds relied upon by the respondent were that the decision under review is not affected by jurisdictional error.

Background

The applicant was born on 18 February 1955 in Sri Lanka and continues to reside in Sri Lanka. She is therefore not an offshore entry person. She is of Tamil ethnicity. On 6 January 2010, the applicant applied for a (Class XB) visa at the Australian High Commission in Colombo, Sri Lanka. As at the date of making the application, the applicant had a brother residing in Australia who was proposing her application. He is not an immediate family member as defined at reg.1.12AA(1) of the Migration Regulations 1994 (Cth) (‘the Regulations’) and thus the applicant did not meet the immediate family provision. Nor was the applicant certified by a relevant Minister under the locally engaged employee provision in subclass 200 or 201 of the Regulations.
The claims of the applicant, as set out in the summary of applicant’s claims in the decision under review of 26 August 2011, are as follows:
a)that the applicant is from a Maveerar family, being a family with a Liberation Tigers of Tamil Ealam (‘LTTE’) war hero because her younger brother, a member of the LTTE, was killed in 1995. The applicant claimed that she is a widow and has been living on her own in Colombo since her husband died in 2001;
b)that the applicant had to relocate from her flat in Bambalapitiya in 2004 when her landlord found out she was from a Maveerar family because the landlord was frightened of bringing the attention of security forces to himself;
c)that since 2006 she has been subjected to questioning at checkpoints by security forces because she is a Tamil living in Colombo and that sometimes body searches have been performed by male officers. She also claimed there was an increase risk of her being stopped because she is from a Maveerar family;
d)that her colleagues at work knew she was from a Maveerar family but this did not cause a problem until after the war ended in 2009 when they started to tell her she should be sent to prison;
e)that in 2008 military intelligence personnel knocked on her door at 3am and searched her flat in Colombo after finding out she was from a Maveerar family, threatening they could return at any time; and
f)that on 22 March 2009, three men in civilian clothing, who she claimed identified themselves as military intelligence, came to her flat where she was sexually assaulted by two of them.
On the hearing of this matter the applicant submits that the core of her claim, which was not dealt with by the decision maker, is as set out in paragraph 15 of her statement dated 18 November 2009, being as follows:
“My husband was a businessman and died in 2001. I am teaching at a Government school in Colombo. Some of my staff members know that I am from a Maveerar family. Until May 2009 (when the LTTE was defeated and the civil war officially ended) they knew I was from a Maveerar family, but they didn’t create any issues. However, after May 2009, the mood changed and they started abusing me and threatened me (especially supporters of the Government Tamil Minister) saying that I should be sent to prison, because of my late brother’s connection to the LTTE and I continue to be targeted.”
There had been an earlier decision of the respondent by his delegate and by email dated 4 May 2010, the applicant had been advised that the delegate had determined to refuse her visa application. The applicant applied for judicial review of that decision and on 26 November 2010 Riley FM made orders by consent that the 4 May 2010 decision be quashed, and a new decision made according to law. The 4 May 2010 decision had failed to accord to the applicant procedural fairness by failing to put country information, that reflected Maveerar families were not currently targeted, to the applicant for comment.
As a result of the jurisdictional error found in the earlier decision of a delegate of the respondent and on 1 April 2011, the Colombo High Commission wrote to the applicant enclosing information for comment. That information was to the effect that:
a)Maveerar families are not being targeted by security forces; and
b)that if a member of a Maveerar family came to the attention of the security forces this is not necessarily because of their Maveerar status.
On 8 June 2011, a submission in reply was received on behalf of the applicant enclosing further reports and articles. On 26 August 2011, a second delegate determined not to grant the applicant a (Class XB) visa.

Legislative framework

The Migration Act 1958 (Cth) (‘the Act’) provides that Regulations made under the Act may prescribe criteria for a visa or visas of a specified class (s.31(3)). The Regulations provide for specified classes of visas, including the (Class XB) visa (Regulation 2.01, item 1402 of Schedule 1).
The Refugee and Humanitarian (Class XB) visa contains five sub-classes as set out at items 200 to 204 of Schedule 2. These are: 200 Refugee; 201 In-country Special Humanitarian; 202 Global Special Humanitarian; 203 Emergency Rescue; and 204 Woman at risk.
Pursuant to reg.2.03(1) of the Regulations, Schedule 2 prescribes the criteria for each class (or sub-class).
Each of the items in Schedule 2 establishing sub-classes 200 to 204 have seven sections: interpretation; primary criteria; secondary criteria; circumstances applicable to grant; when visa is in effect; conditions; and way of giving evidence.
In this proceeding only the primary criteria are of relevance. To be granted a visa in this class the applicant is required to meet all of the primary criteria in one of the sub-classes. Thus, the applicant is to be assessed against all of the sub-classes.
The primary criteria in respect of each (Class XB) visa sub-class are divided into two sub-divisions:
a)criteria to be satisfied at time of application; and
b)criteria to be satisfied at time of decision.
Both subdivisions must be satisfied in order that the primary criteria are met.
Subsection 65(1) of the Act provides that after considering a valid visa application the respondent or his delegate must: (a) if satisfied the prescribed criteria has been satisfied, grant the visa; (b) if not so satisfied, refuse the visa.
The delegate found that the applicant did not satisfy the primary criteria for a (Class XB) visa. In his decision the delegate identified, correctly, that he was required to assess the application against all of the subclasses. That is what the delegate did. Under the subheading “Time of Application Criteria” the delegate explained why each of the applicable criterions in respect of each subclass was not satisfied. No issue was taken with any finding of the delegate by the applicant, save critically, in respect of sub-clauses 201.211(1)(a) and 203.211(1)(a) where the delegate found that the applicant was not subject to persecution in her home country and therefore did not meet the criteria. It is this ground with which the applicant takes issue in these proceedings.
The delegate determined in respect of this finding that the applicant did not satisfy the time of application criteria and for the same reasons did not satisfy the time of decision criteria. The delegate’s findings in respect of the time of application criteria were determinative of the application overall and meant that it was not necessary for the delegate to then go on to consider any additional time of decision criteria, including whether there were “compelling reasons for giving special consideration” to granting a permanent visa.

Consideration

The applicant claims that she specifically and expressly advanced a claim that there was a qualitative difference as to how she was perceived by the security forces before and after the Sri Lankan conflict with the LTTE which ended in May 2009. The applicant argued that her claim clearly arose before the delegate and was required to be dealt with by him; that the delegate failed to deal with such claim, focussing only on the period prior to May 2009. Further that the delegate, if the delegate considered any such claim, failed to firmly fix his mind on the issue at hand.
I am satisfied that the delegate did consider the applicant’s persecution claims and did consider the further material put before the delegate by the applicant. In the decision itself of 26 August 2011 the delegate sets out that the earlier decision was set aside and that on 26 November 2010 the Federal Magistrates Court ordered that the application be reconsidered as the decision-maker had failed to put country information that reflected Maveerar families were not currently targeted to the applicant for comment. That information, the delegate noted, was subsequently put to the applicant and the applicant responded providing a full page letter and attached articles.
The list of reasons supporting that Maveerar families were being targeted by security forces and, as put by the applicant, were included in the reasons of the delegate and were a 19 point list.
The delegate set out under the heading “Persecution” a consideration of the applicant’s claims, which included a consideration of the additional evidence provided in support of her application following the earlier determination. The delegate noted in his reasons, within the consideration of “Persecution” (page 383 of the Court Book), the following:
“I considered the applicant’s claims taking into account the evolving security and human rights situation in Sri Lanka. I noted that the Sri Lankan Government announced an end to hostilities on 20 May 2009 and that armed hostilities with the Liberation Tigers of Tamil Eelam (LTTE) ended, with only a small number of deaths reported as a result of armed clashes in the following days.
I noted updated advice from the UNHCR in July 2010 (UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka) to the effect that the risk of indiscriminate harm posed to civilians caught in the cross-fire of hostilities has essentially ended and that the situation is now one of post-conflict transition. The report indicated asylum claims from persons fitting a particular profile required particular attention. These were: (1) Persons suspected of having links with the LTTE; (2) Journalists and other media professionals; (3) Civil society and human rights activists; (4) Women and children with certain profiles; and, (5) Lesbian, gay, bisexual, or transgender individuals.
In her most recent submission, sent as a response to our request for comment, the applicant indicates she is suspected of having links with the LTTE because she is from a Maveerar family. The applicant also claims she fits the woman and children with certain profiles risk category because of this. The applicant also claims that she fits the various profiles provided in other reports as a suspected LTTE sympathiser since she is from a Maveerar family.
In making my decision I considered the information provided in the applicant’s original application as well as the information provided after an invitation to comment. This included various claims and reports.”
The delegate said further in that consideration:
“I noted the applicant has claimed that she is at particular risk of persecution due to the fact that she is a Tamil from a Maveerar family. While I accept such families may come under increased scrutiny due to perceived connections with the LTTE, I noted that prior to the incident described above the applicant had lived in Colombo for a long period of time without coming under the scrutiny of authorities at all. This is despite the fact that she claims her work colleagues, who are government workers, and other people such as her previous landlord, had known about this.”
The prior incident described in paragraph 23 above was the applicant’s claim that she was sexually assaulted, which the delegate considered plausible even though there was no other information before him to support it. The delegate said as to it:
“However, aside from this one incident, the applicant did not claim any harassment or contact with authorities in the time that has elapsed since the incident and the time of assessment. Thus, despite the severity of the incident, I have considered this to be an isolated incident that does not amount to persecution at this time.”
The delegate went on further in his reasons to refer to the many articles and reports provided by the applicant in support of her application and to note that all evidence pertaining to Maveerar families were from 2006 or before and that the applicant had provided no recent reports of such. The delegate also considered in his reasons whether authorities would be unwilling or unable to provide protection to the applicant. The delegate accepted that while the applicant may have feared seeking help from the authorities at the time of the sexual assault, at the time of assessment he considered there to be insufficient evidence to suggest that the applicant would not be able to report criminal activities to the authorities and/or that she would be denied the standard level of protection available to all Sri Lankan citizens in these circumstances, such as access to the police and judiciary. In reaching that decision the delegate noted the apparent isolated nature of the incident and the lack of evidence to suggest the applicant had been targeted for ongoing harassment. He noted there had been no subsequent incidents with the authorities in the year that had passed since the assault.
The delegate concluded that the applicant had not presented claims that she faced ongoing targeted discriminatory treatment or harassment amounting to persecution.
The applicant complains that the delegate failed to consider the increased risk to her following the cessation of the war. Such a claim was not made by the applicant expressly and could only have arisen by implication from the material before the delegate. In order to give rise to an obligation to consider a claim it must arise “squarely” or “clearly” from the materials. The Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at paragraph 68 stated:
“A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not likely to be made. The claim must emerge clearly from the materials before the tribunal.”
The evidence of the applicant went to asserting that her colleagues, after May 2009, treated her differently. To establish the claim as now put by the applicant, it would be necessary to infer that the military and security personnel in Sri Lanka would treat the applicant less favourably in circumstances where there is no evidence to support such an inference. The applicant’s complaint is not supported by the many articles and reports provided by her in support of her application which, as observed by the delegate, show that:
“…all evidence pertaining to Maveerar families were from 2006 or before and the applicant provided no recent reports of such.”
The claim as now put by the applicant did not arise on the material before the delegate and paragraph 15, as referred to in paragraph 5 of these reasons, was as counsel for the respondent submits, a mere piece of evidence as distinct from an element or integer of a claim (Alsop J in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 79). As such, the respondent refers the Court to the decision of Minister for Immigration and Citizenship v MZYHS [2011] FCA 53 (31 January 2011) wherein Kenny J stated at paragraph 24 that:
“A failure to refer to, or adequately to consider, evidence, whether or not it might be thought probative, does not give rise to jurisdictional error, even though it may have led to an erroneous finding of fact. The authorities for this proposition are numerous...”
Even if it can be said the applicant’s claim was raised sufficiently in the material before the delegate, the delegate’s reasons do adequately address any such claim. The delegate considered the risk of persecution facing the applicant following the conclusion of war. The delegate noted that hostilities with the LTTE had ended on 20 May 2009 and stated that he had:
“…considered the applicant’s claims taking into account the evolving security and human rights situation in Sri Lanka.”
In applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (15 August 2003) the Full Court of the Federal Court stated at paragraph 47:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.”
The delegate considered the applicant’s evidence in respect of her work colleagues, her claim in the context of the post-war political climate, and the materials supplied by her which revealed an absence of evidence relating to Maveerar families after 2006. The claims made by the applicant were considered by the delegate and findings made on the evidence available. The delegate found the applicant was not subject to persecution.

I am satisfied that the delegate considered the material before him in the required sense and, as set out by Black CJ, in Norvill & Anor v Chapman & Ors (1995) 57 FCR 451 in a Full Court decision, at page 462:
“The meaning of “consider” used as a transitive verb referring to the consideration of some thing, is given in the Oxford English Dictionary, 2^nd ed, as “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of.” Consideration of a document such as a representation or a submission (there is little, if any, difference between the two for these purposes) involves an active intellectual process directed at that representation or submission.”
The delegate applied the correct legal test and did not fail to take into account a relevant consideration. No jurisdictional error arises and the application must be dismissed. Costs should follow the event.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 4 April 2012