MZZAT v Minister for Immigration

[2013] FCCA 308

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZAT v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 308

Catchwords:
MIGRATION – Judicial review of decision of the Refugee Review Tribunal – impermissible review on the merits – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 65(1), 91R
1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

Cases cited:
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others (1986) 66 ALR 299
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 551

Applicant: MZZAT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1175 of 2012

Judgment of: Judge Hartnett

Hearing date: 4 March 2013

Delivered at: Melbourne

Delivered on: 17 May 2013

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Holt

Solicitors for the First Respondent: Clayton Utz

THE COURT ORDERS THAT:

1. The Application filed 20 September 2012 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1175 of 2012

MZZAT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced with the Applicant filing an application for judicial review on 20 September 2012.  The grounds of that Application are as follows:-

   "1.  The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;

   PARTICULARS

   (a)   The tribunal states that Country information from 2007 do not identify any incidents of electoral violence between these two parties and refers to paragraph 58 of its decision,(to substantiate its decision) which in effect states that apart from two 1999 reports of violence between the PA and the UNP, there has been no incidents of violence between these two parties.

   (b)   The major conclusion of the tribunal in relation to political violence between the PA and the UNP is based on incorrect information.  The tribunal has failed to avail itself of numerous reports and country information/ amnesty international documents which detail numerous incidents of political violence from 2000 onwards, which the applicant bases his fear on.

   (c)    However, then further on, it says that election monitors in Sri Lanka state that the conduct of parliamentary elections in 2010 was generally free from violence.  Either it was free from violence or there were incidents of violence.

   (d)   The tribunal has also placed too much weight on the fact that the applicant got certain dates wrong and therefore the tribunal has had a certain mindset that whatever else he has stated in support of his case must be tainted.

   (e)   The tribunal has misinterpreted the criteria in s.36(2)(aa) and come to the incorrect conclusion.”

2. The Applicant relies upon an Affidavit in support of his application sworn 14 September 2012 and Contentions of Fact and Law filed 22 February 2013.

3. The Respondent filed a Response to Application on 4 October 2012, seeking, in effect, a dismissal of the application.  The Respondent filed a Court Book in the proceedings on 22 November 2012 and relies upon an Outline of Submissions filed 22 February 2013.

4. The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made 24 August 2012.  In that decision, the Tribunal concluded:-

   a)That it was not satisfied that the Applicant was a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (“the Refugees Convention”).

   b)Having concluded that the Applicant does not meet the refugee criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”), the Tribunal considered the alternative criterion in s.36(2)(aa). The Tribunal was not satisfied that the Applicant was a person to whom Australia had protection obligations under s.36(2)(aa) of the Act.

   c)There was no suggestion that the Applicant satisfied s.36(2)(b) or s.36(2)(c) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) and who holds a protection visa. The Tribunal affirmed the decision of the Delegate of the Minister for Immigration and Citizenship (“the Delegate”) not to grant the Applicant a Protection (Class XA) visa.

Background

1. The Applicant was born on 2 December 1984 and is 28 years of age.  He arrived in Australia on 30 September 2007, travelling on a Sri Lankan passport.  He obtained a student visa valid until 15 March 2011.  On 11 March 2011, he filed an application with the Department of Immigration and Citizenship (“the Department”) for a Protection (Class XA) visa. 

2. On 18 July 2011, the Delegate invited the Applicant to attend an interview on 19 August 2011 in relation to his visa application.  On 31 August 2011, the Delegate made a decision to refuse to grant a protection visa to the Applicant.  The Applicant was notified of the Delegate’s decision under cover of letter of 31 August 2011.  On 27 September 2011, the Applicant applied to the Tribunal for merits review of the Delegate’s decision and, on 20 February 2012, the Tribunal invited the Applicant to appear before it on 15 March 2012.  The Applicant attended the hearing before the Tribunal and, with the assistance of an interpreter, gave evidence in support of his application.  On 24 August 2012, the Tribunal made a decision affirming the Delegate’s decision under review.  The Tribunal sent its decision to the Applicant by registered post, under cover of letter dated 27 August 2012. 

The Tribunal’s Decision

1. The Tribunal found that the Applicant was a national of Sri Lanka and therefore, for the purposes of the Convention, the Tribunal assessed his claims against Sri Lanka as his country of nationality.  The Tribunal considered the Applicant’s claims to fear persecution in Sri Lanka for reason of his political opinion and political activities in support of the United National Party in Sri Lanka (“the UNP”). 

2. On the hearing of the matter, Counsel for the First Respondent raised as a possible new ground on which the Applicant could have relied as being the Applicant’s father’s involvement in the political activities of the UNP.  Having raised the potential ground, as a model litigant, Counsel for the First Respondent then referred the Court to the findings made by the Tribunal, in particular the adverse credibility findings, and also the decision in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, a decision of French, Sackville and Hely JJ made 15 August 2003 and, in particular, paragraph 47 therein where their Honours said:-

   “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.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

3. It is said by the First Respondent in these proceedings that the issue of the Applicant’s Father’s involvement in the politics of the UNP and his activities was not one which was overlooked, and was an issue subsumed in the Tribunal’s findings of greater generality.  Further, there was a factual premise on which such a contention rested, which was rejected by the Tribunal.

4. The Tribunal found the Applicant’s evidence to be scant and lacking in detail, and said at paragraph 63:-

   “[T]here were significant inaccuracies and inconsistencies in his evidence which significantly detract from both the plausibility of the applicant’s claims and his overall credibility.”

5. The Tribunal noted that the Applicant described several instances during election periods in 2004 and 2005 when he claimed that he and his father were targeted by members of the People’s Alliance (“the PA”).  However, because of the scant nature of the Applicant’s evidence and his inability to correctly recall when elections took place in Sri Lanka, the Tribunal, in paragraph 65 of its reasons, did not accept that the Applicant and his father undertook campaigning activities for the UNP during election periods, including attendance at rallies and meetings, supplying vehicles and raising money, or accompanying UNP politicians when they visited villages.  Because of that finding, the Tribunal gave little weight to the letter from Handunnetti R Wimalasiri, former member of the Southern Provincial Council, that the Applicant served actively at the youth front of the UNP.

6. The Tribunal accepted, based upon country information referred to by it, that election-related violence between supporters of opposing political parties occurred in Sri Lanka.  However, the Tribunal said at paragraph 66 of its reasons:-

   “[F]or reason of the vagueness and lack of coherent detail in the applicant’s evidence together with inconsistencies and factual errors contained in it, the Tribunal does not accept that the incidents described by the applicant in fact took place.”

7. The Tribunal noted that the Applicant was unable to recall the correct date of the presidential elections in 2005 and considered that had he been involved in the election campaign, as claimed by him, the Applicant would have been able to recall that the elections took place in November of that year and not in April.

8. The Tribunal also did not accept the Applicant’s claim that his house was stoned, windows broken and the house “daubed with PA slogans” the day prior to the presidential elections in 2005, as the Applicant’s oral evidence at the hearing was inconsistent with his evidence in his written statement.

9. In relation to the Applicant’s claim that during the 2005 presidential elections there was a lot of violence, the Tribunal noted that the country information from 2007 did not identify any incidents of electoral violence between the UNP and the PA up until 2007.  The Tribunal concluded that the Applicant’s claims to have been targeted for harm in the course of election-related political activities were not credible.

10. Because the Tribunal did not accept that the Applicant and his father were targeted for harm by PA supporters in 2005, it did not accept the Applicant’s evidence at the hearing that both he and his father were hospitalised as a result of being attacked by PA supporters.  The Tribunal noted the Applicant’s evidence about that matter to be extremely vague.  When the Tribunal asked the Applicant whether he had reported the incident to the police, he stated he had been to a police station and made a report.  He also volunteered the suggestion to the Tribunal that he would provide this report if the Tribunal was willing to receive it after the hearing.  The Tribunal agreed to receive documentary submissions from the Applicant post-hearing, but the Applicant had not, at the date of the decision, provided the police report or any other and further submissions.

11. The Tribunal found that due to the vague nature of the Applicant’s claims and the significant inconsistencies and inaccuracies in his evidence, it did not accept that the Applicant or his father had been targeted for harm or actually harmed by the PA in 2005 as claimed, and did not accept that supporters of the PA stopped the police from helping the Applicant.  Further, the Tribunal did not accept that the Applicant’s father’s shop was attacked as claimed.  Further, the Tribunal found that it did not accept that the Applicant or his family have continued to receive threats from supporters of the PA, or that people came looking for the Applicant when he had returned to Sri Lanka in 2008.

12. The Tribunal thus concluded that it did not accept the Applicant had been persecuted in the past for reason of his actual or imputed political opinion.  Based on the independent country information before the Tribunal, the Tribunal did not accept that the Applicant faced a real chance of persecution in Sri Lanka for reason of his pro-UNP political opinion.  As a consequence, the Tribunal did not accept that the Applicant has a well-founded fear of persecution for reason of his actual or imputed political opinion, or for any other Convention reason now or in the reasonably foreseeable future if he returns to Sri Lanka.

13. The Tribunal also did not accept that if the Applicant had been persecuted in Sri Lanka and feared persecution if he returned, that he would have waited for more than three years to make his visa application. In its reasons, the Tribunal also considered the application of the complementary protection visa criterion, and found that it was satisfied the Applicant did not meet the alternative provision in s.36(2)(aa) of the Act.

Consideration

1. I accept the First Respondent’s submissions that the Tribunal’s decision is not affected by jurisdictional error and that, accordingly, the application should be dismissed with costs.  It is well established that the Tribunal is not required to make the Applicant’s case for him, nor is it required to uncritically accept any or all of the claims made by the Applicant (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 to 170 and Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 551).

2. The Tribunal carefully considered the Applicant’s claims and the evidence before it and, on the basis of such claims and evidence, made findings that could properly be made by it.  The country information relied upon by the Tribunal was relevant country information, and what information is relied upon and what weight is given to it is a matter for the Tribunal (Minister for Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others (1986) 66 ALR 299 at 328 per Brennan J).

3. The findings made by the Tribunal in relation to election related violence were in relation to the elections in 2005 and based upon country information from 2007.  The Tribunal thereafter in its reasons referred to election related violence in 2010 based upon country information from 2010.  The Tribunal then made a finding open to it on the evidence before it and bearing in mind its adverse credibility findings that the Applicant did not face a real chance of persecution for reason of his political opinion or for any other Convention reason now or in the reasonably foreseeable future if he returns to Sri Lanka.

4. In respect to the Applicant’s claim that the Tribunal’s decision was affected by bias, I accept the First Respondent's submissions that an allegation of actual bias must be distinctly made and clearly proved and that there was no evidence to substantiate the Applicant’s claim.  To demonstrate apprehended bias, the Applicant must establish that a fair-minded and informed layperson might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on its decision (Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 647). The Applicant has not demonstrated that the Tribunal’s decision is affected by bias.

5. The Tribunal in its reasons clearly set out the legal framework, including the requisite satisfaction required under ss.65(1), 36(2)(a) and 36(2)(aa) of the Act and the elements under Article 1A(2) of the Refugee Convention and s.91R of the Act. The Tribunal correctly considered the application of the complementary protection visa criteria in its reasons and discharged its statutory obligations as it should have done and arrived at a decision open to it on the material before it. It correctly articulated the legal framework within which the Applicant fell for consideration, considered the Applicant’s evidence, considered country information, and arrived at a conclusion based upon its assessment of that evidence.

6. Credibility findings, it has been said in many decisions, are findings of fact and are a matter for the Tribunal par excellence (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at 64 to 67).

7. The Applicant’s application sought an impermissible review on the merits.  It shall accordingly be dismissed.

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

Date:  17 May 2013