MZZBV v Minister for Immigration

[2013] FCCA 2427

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZBV v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2427

Catchwords:
MIGRATION – Review of Refuge Review Tribunal’s confirmation of the Minister’s Delegate’s decision not to grant protection visa – Applicant entered Australia under an alias – numerous inconsistencies in claims with evidence at the hearing – credibility of Applicant – no jurisdiction error – application for review dismissed.

Legislation:

Migration Act 1958, ss.36(2A), 36(2)(aa)

Applicant: MZZBV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1332 of 2012

Judgment of: Judge O’Dwyer

Hearing date: 20 December 2013

Date of Last Submission: 20 December 2013

Delivered at: Melbourne

Delivered on: 20 December 2013

REPRESENTATION:

The Applicant: In Person

Counsel for the Respondent: Mr McDermott

Solicitors for the 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 23 October 2012 is dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $5,2500.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1332 of 2012

MZZBV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter comes before me today on an application by the Applicant filed on 23 October 2012 which seeks to review a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 October 2012; which decision affirmed an earlier decision by the Minister’s delegate not to grant the Applicant a Protection (Class XA) visa.  It is to be noted that the Applicant is unrepresented and has been throughout the process of this review.  He is assisted today by, I’m satisfied, a competent interpreter.  His concern about his unrepresented status was expressed earlier in the hearing today but for reasons I have already given, I refused his application for an adjournment to allow legal representation.

2. During the running of the hearing before me today, the Applicant was invited first to expand upon the grounds that his application set out for the review.  It should be noted that those grounds were very generic and broad, and consisted effectively of a statement that the Tribunal took into account irrelevant considerations and made an error of law and also a jurisdictional error.  No particulars were provided, notwithstanding a directional order that the Applicant file an amended application by a specified date. 

3. In addition, the Applicant did not file as directed any contentions of fact and law preparatory for the hearing today.  Accordingly, the task for the Court is made so much harder where there is obviously a situation of an unrepresented litigant who appears to have no or limited understanding of English, but more significantly and understandably, no knowledge of the applicable law in these types of cases.  I explained the nature of the hearing and the process to be followed but ultimately I believe the Applicant was no better appraised of the process before the Court. 

4. In those circumstances, it falls, I believe, to the Court to examine the decision of the Tribunal with a critical eye to determining if there is a prospect of the Tribunal having committed jurisdictional error.  It also falls to the First Respondent as a model litigant to take that approach as well to the Tribunal’s decision.  The experience of the Court is that the First Respondent and the solicitors acting on his behalf adhere to that general direction and abide by the model litigant standards.  In this particular case, I have read the Tribunal’s reasons with an eye for any apparent error on the part of the Tribunal and I am satisfied that there was none and I am also satisfied that the First Respondent has complied with the general obligation that the First Respondent assumes in respect of the requirements of a model litigant. 

5. An examination of the Tribunal’s decision, in my view, discloses a very thorough examination of the claims and exposes the significant inconsistencies between evidence first presented to the Department in support of a protection visa and the evidence subsequently given at the Tribunal hearing.

6. By way of background and by way of articulating the nature of the Applicant’s claims which form the bases for his claim for a protection visa are as follows.  The Applicant is a Sri Lankan who travelled to Australia on 28 October 2009 using an alias, giving his date of birth as 8 June 1979.  He applied for protection in that name but the Minister’s Department, during the processing of his application, identified him as a different individual who was born on the same date previously given.  The Applicant subsequently confirmed that the Department’s identity ascribed to him is his actual identity and for the purposes of the Convention, the Tribunal assessed the Applicant against Sri Lanka as the country of nationality. 

7. The Applicant’s claims centre around significant alleged events, being two abductions of him and one of his father arising out of his involvement, and his father’s involvement, with the opposition party in Sri Lanka  which is known as the United National Party (“the UNP”).  Indeed, his father was an opposition politician.  The Applicant also claimed involvement in the UNP which attracted opposition from the opposing political party, resulting, it was said, in his abduction in 2006 and also in 2009.  He states he feared for his own safety and that required him to escape Sri Lanka.  To give some credibility to that assertion, he made a claim that his father had been murdered in 2010 because of his political activities.  There were further grounds for the granting of the protection visa claimed by the Applicant and they were that he feared persecution because he had departed Sri Lanka using a false identity and he had married a woman in Australia under that identity in circumstances where he was earlier married in 2002. No divorce was obtained in respect of that marriage prior to his marriage in 2010.

8. The Tribunal found, in effect, that the Applicant was not a witness of credit and in so finding, the Tribunal went to some trouble to articulate what it described as significant inconsistencies in the Applicant’s evidence; principally in the evidence given in his supporting statement for his application and the evidence he gave at the hearing.  In paragraph 4 of the Tribunal’s decision, the Tribunal sets out in dot point form the various and significant inconsistencies.  The Tribunal concluded that for reasons of the multiple inconsistencies in key aspects of the Applicant’s claims, including his lack of knowledge about political events in which he claimed to be involved, the Tribunal did not accept the Applicant’s claims of past persecution for reasons of his political opinion. 

9. The Tribunal concluded that it did not accept that if the Applicant had been persecuted in Sri Lanka in the past, and feared persecution if he returned to Sri Lanka, he would have waited for almost one and a half years before contacting the Department regarding his protection application.  The Tribunal gave weight to this aspect of the factual matrix surrounding the Applicant which reinforced in the mind of the Tribunal the general lack of credibility of the Applicant. 

10. Accordingly, the Tribunal found that on the evidence before it, it did not accept that the Applicant faces a real chance of persecution in

    
    

    Sri Lanka of reasons of his political opinion. 

11. In respect of the further claims made by the Applicant which form the basis of his fear of persecution, namely the breaking of his country’s law in marrying for a second time whilst still married to his first wife and by departing t Sri Lanka under a false identity, using falsified documents, the Tribunal concluded that the Applicant does not face a real chance for a Convention related reason of persecution in Sri Lanka arising out of these two claims.  The Tribunal accepted the Applicant may have broken the laws of Sri Lanka, but the Tribunal did not accept that constituted a well-founded fear of persecution for reasons of his actual or imputed political opinion or for any other Convention reason now, or in the reasonably foreseeable future, if he was to return to Sri Lanka. 

12. As is required of the Tribunal, pursuant to section 36(2)(aa) of the Migration Act 1958 (“the Act”), the Tribunal also had to consider the issue of complementary protection and the basis of that consideration was that the Applicant had suggested, in addition to his fear of persecution for political reasons, that he would go to jail because he had married a second time whilst still married to his first wife and also because he used fraudulent documents to depart Sri Lanka. 

    
    

    The Tribunal concluded that the Applicant’s claim to fear going to prison in Sri Lanka as a consequence of breaking a Sri Lankan law was speculative and that such a concern fell short of the substantial grounds for believing there is a risk of this consequence as a result of his removal from Australia, as required by s.36(2)(aa).

13. The Tribunal further concluded that even if there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka he will face a prison sentence in that country, which the Tribunal incidentally did not accept, this consequence would not establish that he will suffer serious harm, as defined, as a result. Referring to the definition of significant harm in section 36(2A) of the Act, the Tribunal did not accept that any prison sentence would cause the Applicant to be arbitrarily deprived of his life, to have the death penalty carried out on him, or cause him to be subjected to torture.

14. Indeed, the Tribunal found that the Applicant did not claim that he would suffer such harm, and the evidence before the Tribunal did not indicate that he would suffer such harm.  Nor did the Tribunal accept that any such sanction would involve the Applicant being subjected to cruel or inhumane treatment or degrading treatment or punishment.  For those reasons, the Tribunal did not accept the Applicant’s claims that he was, or would be harmed, or would live in fear in Sri Lanka, or face a real risk of experiencing any other form of significant harm. 

15. The Tribunal, under this issue of complementary protection, concluded that the Applicant’s claims, both individually and cumulatively, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka there is not a real risk that he will suffer significant harm were unfounded. 

16. Accordingly, in respect of a Convention related persecution, the Tribunal found there was none to justify enlivening Australia’s obligation to protect, and in respect of the complementary protection provisions, likewise those protections were not enlivened.

17. My examination of the Tribunal’s decision which I’ve read with a keen eye to finding any potential jurisdictional error has led me to the conclusion that there is none. Also as the first respondent, as a model litigant, has not alerted me to any likely jurisdictional error, I am reinforced in that view that I have.  An examination of the Tribunal’s reasons, in my view, shows a thorough and diligent examination of the claims and the evidence and the conclusions reached. The findings made by the Tribunal were open to it on the evidence before it.  The reasons, and approach of the Tribunal to its fact finding task and the conclusions reached, could not be said to be unreasonable, illogical or irrational. 

18. It was open, in my view, to the Tribunal to find as it did.  Accordingly, no error has been exposed, or indeed, no jurisdictional error has been exposed and the application filed on 23 October 2012 is dismissed. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge O’Dwyer

Associate: 

Date:  11 August 2014