MZYYU v Minister for Immigration - [2013] FMCA 33

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYYU v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 33

MIGRATION – Application for judicial review of Refugee Review Tribunal decision – self-represented applicant – grounds of application and written submissions relatively unparticularised – consideration of applicant’s claims – no jurisdictional error shown.

Migration Act 1958, ss.36(2)(aa), 424(1)

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123

Applicant:

MZYYU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 762 of 2012

Judgment of:

Burchardt FM

Hearing date:

21 November 2012

Date of Last Submission:

21 November 2012

Delivered at:

Melbourne

Delivered on:

31 January 2013

REPRESENTATION

Counsel for the Applicant:

In person (assisted by interpreter)

Counsel for the First Respondent:

Mr Wood

Solicitors for the Respondents:

Clayton Utz Lawyers

ORDERS

The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 762 of 2012

MZYYU

Applicant

And

MINSTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 May 2012. The application lists one ground, namely that the decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction.
The submissions of the first respondent correctly characterised the particulars appended to that single ground as being, in effect, separate grounds individually advanced. In addition to the matters set out in the application, which are replicated almost word for word in the applicant’s affidavit filed with the application, the applicant has added in his contentions of fact and law a further matter, namely “complementary protection criterion”.
I have treated that addition as an additional amended ground of application.
For the reasons that follow, I do not think that the applicant has shown that the Tribunal made its decision without jurisdiction or was affected by any jurisdictional error, and it follows that the application must be dismissed with costs.

The Tribunal’s Decision

The Tribunal commenced its decision by setting out the details of the application. It should be noted that there were two applicants refused visas, but the second, who is the wife of the first-named applicant, only applied as a family member. It will be convenient to deal only with the claims of the first applicant.
The Tribunal noted that the applicants had applied to the Department of Immigration for protection visas on 18 October 2010 and this request was refused by a delegate on 7 September 2011. It was that refusal that led to the Tribunal hearing.
The Tribunal next set out the relevant law in terms that have been not the subject of criticism. At CB197 and following, the Tribunal set out the claims and evidence in the case.
It is uncontroversial that the applicant was born in 1985 in Matara, Sri Lanka and is a Sri Lankan citizen. He is of Sinhalese ethnicity and Buddhist religion and arrived in Australia for the first time on

29 September 2007 as a student. He held various student visas and the last ceased on 30 August 2010. The applicant has 19 years of education and in his application form for the protection visa the applicant indicated that he had returned to Sri Lanka in May 2010 due to his mother’s sickness and that he had married the second applicant on 11 February 2009 in Matara, Sri Lanka (paragraph 21 CB197).
The Tribunal noted a signed statement of the applicant dated

14 October 2010 (see CB197 paragraph 23) indicating:
a)that his parents and especially his father were heavily involved in politics in Sri Lanka in which his father was a strong UNP member and supporter. The applicant claimed that his uncle, T M Nimal de Silva, was a person with a very strong political profile in the UNP. The applicant claimed that his uncle was mayor of Matara from 2000 until 2005 and that by the end of the term of office, the applicant was a UNP member and actively involved in party work.
b)The applicant claimed to have been actively involved in the 2005 presidential elections on behalf of the UNP and to have campaigned in support of his uncle. The applicant claimed to have become well-known in the area because of his political work and his family connection, which gave rise to increased attention from PA supporters in the form of threats and being attacked at rallies and having his family home stoned.
c)The applicant also claimed that in 2006 he commenced university and became very involved with the student UNP organisation, which led to the rival PA/JVP student organisations threatening him with death. He claimed to have been assaulted by an armed gang on his way home, but rescued by other students.
d)The applicant had recently returned to Sri Lanka and to his surprise, he found he was still recognised by some of his political opponents and received a number of threatening phone calls and other threats. He claimed not to have applied for protection earlier as he was unaware that he could make such an application.
The Tribunal noted that the applicant provided two letters of support, one being from Tissa Attanayake, General Secretary of the UNP, and the further being a letter from TM Nimal de Silva (see CB198-199, where the letters are set out in full).
The Tribunal noted the decision of the delegate, which had made significant adverse credibility findings against the applicant (paragraph 28 CB199).
At CB200, the Tribunal summarised written submissions received on 11 April 2012 and signed by the applicant. The Tribunal noted that the applicant sought to explain difficulties in recollection at his interview with the delegate, gave further details of his political activity in relation to his uncle, claimed that he would have no State protection (based on country information), said that he had fled political persecution in Sri Lanka and referred again to the physical assault, telephone threats and other difficulties. The applicant also sought to explain why he had not told the delegate of his first return visit to Sri Lanka, the first visit being for his marriage whereas the second was for illness of his mother. The applicant further repeated that he came to Australia as a student and had no knowledge of protection visas, and that it was only after his student visa ceased that he inquired about protection.
The Tribunal noted that, “The submission cites new complementary protection provisions but makes no claims in relation to them.”
At CB201 (paragraph 35), the Tribunal recorded what took place at the Tribunal hearing on 16 April 2012. The applicant has not provided any challenge to the actual account therein given. I note that the Tribunal raised various matters arising from the decision of the delegate including “serious concerns about the accuracy and reliability of some of the evidence provided by the applicant. I said the applicant’s credibility had been in issue in the primary decision and was also in issue in the hearing today, though I would only make up my mind after I had considered all the evidence before me.”
I note that at CB202 the Tribunal raised issues relating to TM Nimal de Silva and the letter provided by him to support the applicant’s case. Inter alia, the Tribunal asked why that letter made no reference to any harm to the applicant in the circumstances of their interrelationship, a question which it appears the applicant failed to answer satisfactorily.
The Tribunal also, at CB203, sought clarification about the letter from Tissa Attanayake and I note the following extract at paragraph 46:
“Asked if the Tribunal could contact the author to discuss the letter, the applicant said “sometimes”. Asked to clarify his answer, he said that Attanayake handles around one hundred thousand people and might be able to talk about the applicant’s circumstances but might not remember his name after five years – though he would remember if the uncle’s name was mentioned. Noting the evidence that the author had learnt most about the applicant’s stated adverse circumstances through the uncle’s reporting, I said I may question what Attanayake personally knew of the applicant.”
At CB204-205, the Tribunal records its discussion with the applicant about his political activities in Sri Lanka, and I note that the applicant claimed to have been assaulted at least twice.
At CB205 the Tribunal records discussion about the protection application, and I note that the Tribunal recorded:
“I said I was concerned by the timing of the protection application in the stated circumstances and how the timing sat with the claims he had raised about his trip to Sri Lanka in 2010. The applicant had not taken steps for around three years despite fears for his life, and then had applied for protection after his student visa ceased. I said this led me to question whether the protection application was motivated by his student visa ceasing, or was due to the circumstances in Sri Lanka he described. The applicant said his student visa ran until August 2010 and he did not think of applying for protection before then. Then, after his visit to Sri Lanka in 2010, his parents made him return. Asked if he had considered continuing his studies he said his student visa had expired and he had financial problems.”
At paragraphs 55-56, the Tribunal dealt with the applicant’s return to Sri Lanka in 2009. The Tribunal recorded at paragraph 56:
“Asked why he did not refer to this trip to Sri Lanka in his protection visa application form when asked to list any return travel to Sri Lanka, the applicant said he could not remember if he included it or not. I clarified that the form did indicate the applicant was married in Sri Lanka in 2009 but he had not indicated this trip in response to the specific question on the form about travel. I noted that the written statement provided DIAC did not refer at all this trip. The applicant said he had indicated his marriage in Sri Lanka on the form, and did not think the visit was important (to his claims). I said I was concerned by the omission, given the applicant evidence that he had been threatened during the visit. I said I was concerned he was trying to conceal the trip. He said he didn’t conceal it as he referred to it in the application form. I referred to consecutive paragraphs 6 and 7 of the statement regarding the applicant’s arrival in Australia in 2007 and his trip to Sri Lanka in 2010. Noting that the statement was otherwise sequential and detailed, I said I was concerned that there was no mention of the trip or the threats made during it. I said this led me to question if the events had occurred.”
The Tribunal continued at paragraphs 57-60 (CB206-207) to deal with the applicant’s return to Sri Lanka in 2010. It is not necessary to paraphrase these matters in detail save to say that the Tribunal elicited the applicant’s assertion that people had come to the house where he was in Matara and bashed against the windows, but he did not know how the assailants would have known that he was at this dwelling. The applicant was asked why these two assailants would be interested in him given that he had not been politically active in Australia during his time here since 2007 and why he was followed so persistently. He said that he did not know.
The applicant also claimed that the car in which he was travelling on his way to the airport was the subject of assault but he was not able to say how the assailants would have known where he was.
At paragraphs 61-67 the Tribunal recorded its discussion with the applicant about future harm (CB207-208). The Tribunal put country information about the treatment of UNP supporters in Matara to the applicant noting that apart from some activists with high profiles, such UNP supporters were not generally being harmed. The Tribunal also told the applicant that the credibility of his evidence was in issue with regards to the plausibility and timing and the circumstances of his protection application. The applicant said that if he was given two more weeks he could give current information about the situation in Sri Lanka but the Tribunal declined to grant this time because of the time already available to the applicant.
At paragraph 65, the Tribunal recorded:
“Noting that I would consider the existing evidence in assessing complementary protection in his case, I asked the applicant to make any further comments on that matter. He said he had a strong fear for his life now – not only because of the claimed circumstances, but because of the current situation in Sri Lanka. Asked what he meant, he cited the case of a Sri Lankan-born Australian citizen who returned to Sri Lanka two weeks ago and had problems. I said I was broadly aware from reporting of that case that the person involved had a long-established profile as an active opposition opponent. I said on that basis I may not accept that the applicant would face the same risk as the person cited, as his circumstances were different.”
The applicant also iterated a claim of abduction and gave an example of other university students who had been abducted.
The Tribunal also noted at CB208 the receipt of a substantial amount of material post-hearing.
From CB208-217 the Tribunal recorded its findings and reasons. The Tribunal, in my view, correctly characterised the matter (paragraph 70):
“The applicant’s core claims are as follows. He will be killed or abducted or kidnapped if he returns to Sri Lanka, due to his UNP membership, political profile and activities. His adverse political profile is heightened due to his father’s and particularly his uncle’s UNP activities. Prior to departing Sri Lanka in September 2007, he was beaten, threatened with his life directly and indirectly, and his family’s house and car had been damaged by his political (pro-government) opponents. He left Sri Lanka in fear for his life and safety. The threats and monitoring by his political opponents continued during his return visits to Sri Lanka in around January 2009 and again in 2010.”
At paragraph 71 the Tribunal referred to the timing and circumstances of the application. The Tribunal noted that the applicant only applied for a protection visa in mid-October 2010, about seven weeks after his student visa had expired and around five months after he returned from a visit to Sri Lanka as the result of which he claimed to be in fear for his life. The Tribunal noted that the applicant did not complete any course during the almost four year period that he had held a student visa, and said that he did not seek to extend his studies due to financial problems. The Tribunal said:
“These collective circumstances lead me to question whether the applicant’s protection claims are genuine. However, if the claims are established through credible evidence and arguments, this would alleviate my concerns. I have therefore had careful regard to the evidence before me.”
The Tribunal went on to find (albeit on the basis of giving the applicant the benefit of the doubt) that the letter from TM Nimal de Silva was from the applicant’s uncle.
The Tribunal referred to the uncle as “A” thereafter in the decision.
At paragraph 78 (CB210) the Tribunal found:
“The applicant said A was often threatened during his mayoral term (2000-2005) but never harmed, noting he had personal security guards. There is no suggestion that A has been harmed from the end of his term onwards, and the applicant’s account is that A remains a UNP supporter but is “not as active as before”. Based on this evidence, I find that A has not been harmed in the past in his role as UNP mayor or as a UNP campaigner in the 2004 and 2005 elections. I accept that his UNP role has lessened from 2005 onwards.”
Having analysed the evidence, the Tribunal came to the conclusion that the applicant did not have an adverse UNP political profile and was not harmed in connection with his UNP activities in 2004. In relation to 2005 the Tribunal found at paragraph 82 (CB211):
“In relation to the 2005 presidential election, the applicant said he was actively involved in organising pocket meetings at his family home, where A or other UNP politicians spoke, and that he was involved in canvassing and poster campaigns. I found the applicant’s account (and particularly the evidence cited above at paragraph 51) of the meetings and the political platforms discussed at them to be extremely general and vague. I also found them starkly mismatched to his claimed political involvement as a committed UNP member “deeply immersed in the political process”, and in the context of his stated close involvement in the campaign activities of A, a close relative and elected UNP mayor with a high local UNP profile. This leads me to serious doubt that the applicant had an organisational or canvassing role for the UNP in the 2005 election campaign.”
At paragraphs 84-87 the Tribunal analysed the letter from A and a letter from Attanayake and found various concerns about them. The reasoning for these findings seems to me to be perfectly unexceptionable. They did not alleviate the serious concerns the Tribunal member had about the credibility of the applicant’s account of his role in 2005. The Tribunal, for reasons once again that seem entirely reasonable, found at paragraphs 88-89 against the applicant’s assertions that he had faced threats in 2005 or 2006, and did not accept the applicant’s claimed account of his role at university as a university UNP organiser. Taking matters cumulatively at paragraph 92, the Tribunal did not accept that the applicant left Sri Lanka in 2007 in fear for his life or personal safety.
At paragraphs 96-97, the Tribunal analysed the circumstances of the applicant’s return visit to Sri Lanka in 2009 and said (paragraph 97):
“I am concerned that the applicant deliberately concealed this visit in the context of his protection claims. Given this, and given my other serious concerns about the credibility of cores aspects of the applicant’s account (expressed elsewhere), I found the applicant’s evidence about the threats made to him during this trip to be unreliable, and I do not accept it.”
At paragraphs 98-100 (CB214), the Tribunal dealt with the applicant’s assertions of harm in 2010, and the findings can be encapsulated by:
“99. I found the applicant’s account of the threats and surveillance to be extremely vague and extremely implausible.”
And:
“100. The applicant’s further evidence is that, on route to the airport, days later and four or five hours’ drive away, near Colombo, the brother-in-law visually recognised one of the assailants, after passing a police checkpoint, and that the vehicle he was in had its windows smashed. I find this implausible and incredible…”
Given these findings, it is no surprise that the Tribunal did not accept that the applicant has a well-founded fear of persecution. The Tribunal expressly found at paragraph 106 (CB215) that the applicant simply had not had any significant past or current UNP profile and that there was accordingly no reason he would be abducted for any Convention reason either now or in the reasonably foreseeable future.
The Tribunal went on to deal at paragraphs 111-117 with the complementary protection claims and found that the applicant did not meet the requirements of s.36(2)(aa) because:
“116. … I find the accepted evidence does not provide substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.”

The Applicant’s Grounds as Characterised by the First Respondent

The applicant as a self-represented litigant has had an understandable measure of difficulty in preparing his application and contentions of fact and law. To an extent matters are set out in a slightly scattergun way. The written submissions of the first respondent have sought to characterise the applicant’s assertions and in my view, do so correctly. Accordingly, I will deal with the matters raised in the written submissions in the same generic way as the first respondent has.

Bias

At paragraph 7 of his written submissions the applicant states:
“The tribunal has formed a certain mindset even before assessing my claims, i.e. at paragraph 71 the tribunal states, “he did not complete any course during the almost four year period he held a student visa, and says he did not seek to extend his studies due to financial problems. These collective circumstances lead me to question whether the applicant’s protection claims are genuine.”
That assertion is of itself correct as far as it goes. The Tribunal did set out at paragraph 71 concerns as to whether the applicant’s protection claims were genuine because of the timing and overall delay of his application. However, even the last sentence is not expressed as a final conclusion.
It should be noted that in the same paragraph the Tribunal made it clear that it would have proper regard to the material before it. In fact, the Tribunal clearly did have regard to the evidence before it.
There is no assertion of any personal animus on the part of the Tribunal member to the applicant. Nor, in my view, is there anything in the Tribunal’s decision which would suggest that a fair-minded and informed lay observer would reasonably apprehend that the Tribunal did not bring an impartial mind to the determination of the application for review.
The facts giving rise to the Tribunal’s concerns are entirely natural and reasonable, see, for example, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347.

Application of the Wrong Test

At paragraph 8 of his written submissions, the applicant asserts that the Tribunal erred by stating that the uncle, who was the mayor of Matara, had not been harmed in his role as UNP mayor or as a campaigner. A similar criticism is made of the Tribunal’s findings in relation to his father. The submission is that the conclusion of the Tribunal that because these persons were not harmed in the past the applicant was not himself likely to suffer significant harm was said to be “wrong” in that just because harm has not been suffered in the past, it does not mean it is likely to happen in the future”.
The first respondent’s submissions refer to the High Court decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at [575] where the High Court asserted inter alia:
“What has occurred in the past is likely to be the most reliable guide as to what will happen in the future.”
It is correct to say, as the first respondent’s submissions do, that the Tribunal rejected the applicant’s claims both to have had a significant role within the UNP and to have suffered harm as a result, and that the Tribunal found that neither the father nor the uncle had suffered harm as a result of their political activities or opinions in the past.
I accept that these findings were open to the Tribunal. It is not apparent to me that there is any error in the Tribunal saying that because the applicant (who was found to have no significant political profile) and his father and uncle (who did) had not come to harm in the past, it was likely that the applicant would not himself suffer harm in the future. This was no error on the part of the Tribunal.

Breach of a Duty to Inquire

At paragraph 9 of his written submissions, the applicant complained that it was open to the Tribunal to seek further detail from A as to his letter and that he should have been given the opportunity to address this matter in a future submission.
Once again I accept the submission for the first respondent as to this matter. While s.424(1) of the Migration Act 1958 (“the Act”) authorises the Tribunal to obtain information that it considers relevant, it does not require the Tribunal to do so (see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594). This was not in the circumstances of the case “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained” (Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25]).

Ground 4 Breach of a Duty to Invite a Further Submission

The applicant has alleged in paragraph 9 that he should have been given an opportunity to make a further submission about his uncle’s letter. Nonetheless, the Tribunal was not required to disclose to the applicant its assessment of the probative value of the letter as this was part of the Tribunal’s thought processes. The Tribunal had put the applicant on notice at the hearing as to the limited probative value of the letter (see paragraphs 39-40 CB202).
The Tribunal did not fall into jurisdictional error in the fashion the applicant asserts.

Errors in Fact-Finding

Paragraphs 10 and 11 of the applicant’s submissions raise alleged errors of fact-finding by the Tribunal. These matters are not capable of constituting jurisdictional error in the circumstances of this case. Furthermore, in my view, the Tribunal’s findings were well-open to it on the evidence.

Complementary Protection

Paragraph 12 sets out matters to do with complementary protection criterion, although I note some of these matters are taken seriatim from the Tribunal’s decision.
Subparagraphs 12(a) to (e) simply set out the nature of the matters raised by the complementary protection criterion, and paragraph (f) merely asserts “The tribunal fail to consider my claims under complimentary protection therefore the tribunal erred in the decisions.” (sic)
That assertion runs, in my view, wholly contrary to paragraphs 111-117 (CB216-217) in which the Tribunal dealt in terms with complementary protection. This aspect of the application must fail.
Paragraph 13 of the written submissions merely involves an assertion that the Tribunal erred in the finding that the Tribunal made as to the applicant’s role as a UNP university organiser and UNP supporter with strong family connections to the UNP. That assertion is plainly not made out on the materials.

The Applicant’s Oral Submissions

The applicant made it clear that he relied solely on his written submissions and had nothing further to add when the matter was before the Court.

Conclusion

In the circumstances, the applicant’s various grounds are not made out and it follows that the application must be dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 31 January 2013