MZYYC v Minister for Immigration

[2013] FCCA 1769

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZYYC v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1769

Catchwords:
MIGRATION – Review of Independent Merits Reviewer’s (“IMR”) recommendation – whether IMR asked the wrong question – whether the IMR should have determined whether the applicant had a well-founded fear of persecution in his home region – whether a general finding that there was not a well-founded fear of persecution for Tamils from the north in Sri Lanka was sufficient – whether the generality of the finding about a well-founded fear of persecution subsumed the need for the other determination – review dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases cited:

DZABR v Minister for Immigration and Citizenship & Anor [2012] FMCA 558
Minister for Immigration and Multicultural Affairs v Yusuf [2001] 180 ALR 1
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZQEN v Minister for Immigration and Citizenship [2012] FCA 387
Applicant WAEE vMinister for Immigration & Multicultural & Indigenous Affairs [2003] 75 ALD 630

Applicant: MZYYC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number: MLG 638 of 2012

Judgment of: Judge O'Dwyer

Hearing date: 14 September 2012

Date of Last Submission: 14 September 2012

Delivered at: Melbourne

Delivered on: 1 November 2013

REPRESENTATION

Counsel for the Applicant: Mr Fairfield

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Mosley

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The name of the first respondent be amended to read, “Minister for Immigration and Border Protection”.

2. The application filed on 31 May 2012, as amended, is dismissed.

3. The applicant pay the first respondent's costs.

FEDERAL CIRCUIT
COURT OF AUSTRALIA  
AT MELBOURNE

MLG 638 of 2012

MZYYC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

DAVID CORRIGAN IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By his amended application the applicant seeks to challenge the recommendation of the second respondent ("the IMR") dated 23 April 2012; which recommendation was founded on a determination by the IMR that the applicant did not meet either of the criteria for a Protection (Class XA) visa as set out in s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth) ("the Act"). Consequently, he recommended to the first respondent that the applicant not be recognised as a person to whom Australia has protection obligations.

2. The amended application gave one ground for review; namely,

   1. The second respondent failed to observe the requirements of procedural fairness and/or failed to apply correct legal principles by failing to consider the applicant’s claim and by asking itself the wrong question.

   Particulars

   The IMR asked itself whether the applicant had a well-founded fear of persecution by reason of being a young, single, Tamil male who "originated" from the north of Sri Lanka. The IMR failed to consider whether the applicant had a well-founded fear of persecution by reason of being a young, single, Tamil male who would return to, and reside in, the north of Sri Lanka.

Background

1. The applicant is a 33 three-year-old Sri Lankan of Tamil ethnicity who came to Australia as an illegal maritime arrival on 7 February 2010.

2. The IMR found that he was born in 1980 in Murunkan in the north of Sri Lanka, but because of his father's fear of the Sri Lankan Army (“SLA”), he and his family (inclusive of the applicant) escaped to India by boat to Tamil Nadu, where they remained at a refugee camp. In 2004, it was accepted, the applicant returned to Sri Lanka after hearing from relatives that the situation had improved. He lived with an uncle in Vavuniya where he worked in transporting earthmoving equipment to the Vanni region in the north of Sri Lanka where the Liberation Tigers of Tamil Elam (“LTTE”) had control.  He would, he claimed, pass regularly through SLA check points where he was warned not to work for the LTTE.  In November or December 2005 he began working for a NGO called Solidar Group in Kilinochechin, north Sri Lanka which region was under the control of the LTTE.  His official duty for the Group was to assist in rebuilding works following the Tsunami, but whilst there, he claims he was forced to do work for the LTTE as well.

3. When hostilities broke out again in August 2006 he claims, because of his suspected involvement with the LTTE, he came under the attention of the SLA resulting in 8 to 9 hours of incarceration. That was in October 2006. In January 2007 he claims he went into hiding until January 2009 when he returned to India to be with his family. He claims that later in November 2009 he returned to Sri Lanka after the war had concluded, but because of his alleged earlier LTTE involvement he feared persecution and he stated to the IMR that he left Sri Lanka for Australia, seeking asylum.

IMR’s Findings

1. The IMR in his written recommendation gives a more detailed background to the applicant and his claims than that given above. The IMR clearly identifies, which identification is consistent with the material provided by the applicant in support of his case, that he claimed a well-founded fear of persecution by reason of him being "a young, single Tamil male from the north of Sri Lanka", as well as other bases for having a well-founded fear of persecution if he was to return to Sri Lanka, which are not apposite to this review.

2. The IMR made findings relevant to this review; namely,

   i)The IMR did not accept the applicant had a well-founded fear of persecution because he and his family fled Sri Lanka in 1990 after his father was suspected of being involved with the LTTE because those events happened over 20 years ago and, further, because the country information indicated an improved situation generally for Tamils in Sri Lanka;

   ii)The United Nations High Commissioner for Refugees (“UNHCR”) indicated that there was no longer a presumption of eligibility for refugee status for Tamils originating from the north;

   iii)The IMR attributed more weight to the UNHCR information than articles and written submissions provided on behalf of the applicant. In that regard, I note that it is the IMR’s role to assess and attribute what weight such information should be given[1];

   iv)The IMR found that the applicant falsely claimed that he returned to Sri Lanka in November 2009 and it was, indeed, from India that he left to seek asylum in Australia.  The IMR found he left Sri Lanka in January 2009 for India and did not return, but instead embarked on his travel to Australia directly from India;

   v)The IMR rejected the applicant’s claim that he was of any interest to Sri Lankan authorities for suspected LTTE involvement when he departed Sri Lanka in January 2009;

   vi)The IMR considered the country information and was of the view that overall it indicated the applicant would not face a real chance of persecution now or in the reasonably foreseeable future for reasons of his Tamil ethnicity or his membership of a particular social group identified as “young, single male Tamils from the north of Sri Lanka”, or from the government or any paramilitary organisation; and

   vii)The IMR concluded there was no real chance of the applicant being imputed with an adverse political opinion as a supporter of the LTTE.

   [1]     See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.

3. Based upon the IMR’s assessment of the improved situation for Tamils generally in Sri Lanka, but also those identified as being from the north, since the war and that the applicant was released after a short period in custody in 2006, he did not accept that the applicant was of any interest to the authorities.  The IMR did not accept the applicant faced a real chance of persecution on the bases, relevantly, of his race, his imputed political opinion, or his membership of any particular social group (his family, or as a young, single Tamil male from the north).  The IMR also did not accept that the applicant was a member of any particular social group consisting of persons suspected of being LTTE.

Contentions and consideration

1. The applicant contended that the IMR should have asked himself first, whether or not a Tamil from the north of Sri Lanka, if returned to Sri Lanka, would suffer persecution in northern Sri Lanka as it was, in effect, obvious that the application for refugee status was based upon a premise that any return to Sri Lanka would necessitate a return to the north of Sri Lanka to live.  The north of Sri Lanka was his “home region”. The applicant then contended that there was significant evidence before the IMR to suggest that the applicant would face persecution in northern Sri Lanka which would then necessitate, and only then, an examination of whether the applicant could relocate within Sri Lanka.  It was contended that the IMR failed to ask himself that first question and, in doing so, missed a required first step and proceeded to ask himself the wrong question.  It was contended that the IMR directed his mind to the issue of whether a Tamil from the north of Sri Lanka was at risk of persecution in a more global sense in Sri Lanka.  It was further contended that if there was an examination, based upon the premise that there should have been a finding, or the possibility of a finding, that the applicant faced persecution in the north, then the issue of relocation to somewhere else in Sri Lanka should be considered.  The assessment then would have focused on whether it was possible or practical for the applicant to relocate.

2. Emphasis was placed upon the fact that the applicant had no relatives in other parts of Sri Lanka, which, by necessary implication, he needed; although Counsel for the applicant did not specifically articulate this aspect.  However, the strong inference was there to be drawn from how the contention was constructed. It was said that his employability, his education and his skills were issues that restricted his capacity to relocate away from relatives.  The argument, again by necessary implication, would have been open to the applicant that he could not relocate to any other region of Sri Lanka, leaving him with the prospect of a successful claim that he had a well-founded fear of persecution.  I might say, however, if his family was so important a consideration, then it begs the question of why he would travel to Australia for asylum where he did not have any family or, indeed, why he would not return to Tamil Nadu in India where his parents live.

3. In that context too, the IMR found, as stated, that the applicant did not depart from Sri Lanka to travel to Australia, but actually departed from India where he had the benefit of family support in Tamil Nadu.

4. The contention that the IMR should have been alert to the nature of the application - namely that it was limited to an application for refugee status because he was a Tamil from the northern region of Sri Lanka and that he would necessarily have to return to the north of Sri Lanka – is, in my view, manifestly unsustainable. A fair reading of the application for asylum, the claims made and the nature of submissions made to the IMR clearly reflect the nature of how the applicant put his claim, a claim, incidentally, made with the assistance of a migration representative.  Clearly the claim was put on the basis that the applicant has a well-founded fear of persecution because he was a member of a particular social group, being a young, single Tamil from the north.

5. The applicant relied on a passage from the decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[2] in which the Full Court at [63] stated:

   “It is plain enough, in the light of Dranichnikpov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances.”

   [2] [2004] FCAFC 263.

6. The jurisdictional error identified by the applicant that the IMR committed, although it was not expressly articulated in the applicant's claim, but which was said to arise from the evidence, was a need to first consider the issue of whether the applicant faced a well-founded fear of persecution when he returned to live in his home region in the north of Sri Lanka because he had no alternative but to return to live there.  It was said that there was sufficient evidence before the IMR that suggested the applicant would face persecution in the north and I was referred to that evidence, said to be probative.[3]

   [3]     See Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 75 ALD 630 at [45].

7. However, the passage quoted from in NABE above is not complete; [63] went on further to say:

   “Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is in a factual premise upon which [the] contention rests which has been rejected": Applicant WAEE (at [47]).”

8. It is this latter reference by the Full Court that is apposite to this review. In my view, a fair reading of how the applicant put his claim for protection, in the written material relied on by the applicant before the IMR, is conclusive of the fact that the applicant based his claim on being a member of a particular social group of young, single Tamils from the north.

9. The applicant did not prosecute his claim for protection on the basis that he could only live in the north where his extended family lived.  In my view, it was not a necessary requirement for the IMR to separately consider and determine the question of the applicant having a well-founded fear of persecution if he was to live in the north of Sri Lanka as, should that exercise have been undertaken by the IMR and should the IMR have made a positive finding that if the applicant was required to live in the north on his return he would be subjected to persecution, then the next necessary step would have been for the IMR to consider the possibility of relocation within Sri Lanka. The latter task was, in effect, undertaken by the IMR and in so doing, in my view, the question of the applicant’s persecution in the north is a redundant consideration and sterile exercise as the IMR clearly found, for cogent reasons, that the applicant did not suffer a well-founded fear of persecution more generally in Sri Lanka.  In considering that issue the IMR placed more weight on the information from the UNHCR, which he was entitled to do, than that provided by the applicant in support of his claim. Indeed, the information that was provided by the applicant was considered, assessed and given such weight as the IMR determined.  Clearly, the dominant finding of the IMR that the applicant did not have a well-founded fear of persecution is dispositive of the applicant’s claim for protection.  In the words of the Full Court, the issue of whether the IMR should have first asked himself the question of whether the applicant had a well-founded fear of persecution if he returned to the north to live is “subsumed in findings of greater generality”.[4]

   [4]     See also Minister for Immigration and Multicultural Affairs v Yusuf  [2001] 180 ALR 1.

10. In an attempt to give the ground for review some credible basis, reference was made by the applicant to two cases where a critical issue for determination was, indeed, the place to which a claimant would be required to return and whether a finding was required to be made in the context of first determining the claimant’s “home region”.[5]  Those two cases, whilst in their context considered the issue about the likely place from which the claimant fled persecution and to which the claimant most likely would return to, they do not, in my view, give any assistance to the applicant in his contention that it was a necessary first step to determine whether the applicant faced a well-founded fear of persecution should he return to live in the north.

    [5]     SZQEN v Minister for Immigration and Citizenship [2012] FCA 387; and DZABR v Minister for      Immigration and Citizenship [2012] FMCA 558.

11. The IMR, in my view, undertook the review process required of him according to law and made cogent findings of fact that were open to him on the evidence presented.

Conclusion

1. The IMR conducted a thorough examination of the applicant's claims addressing each of them, and made findings in respect of each.  He also made a finding in respect of the applicant's credibility and recounted how various claims of the applicant were later recanted.

2. No matter how this application for review was dressed, and no matter how vigilant Counsel for the applicant was in his attempts to avoid any suggestion that the review was, in effect, a merits review - which is beyond the jurisdiction of this court - the only conclusion I can reach after considering the contentions is that the review before me was in effect an impermissible attempt at a merits review.

3. A fair reading of the IMR’s reasons, and findings supportive of the recommendation made, does not demonstrate a jurisdictional error having been committed by him.

4. For the above reasons, the application filed on 31 May 2012, as amended, should be dismissed.

5. I regret that my ill-health has precluded me from providing a more timely decision in this matter.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge O'Dwyer

Associate: 

Date:  1 November 2013