MZZCT v Minister for Immigration

[2013] FCCA 749

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZCT v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 749

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – alleged failure to provide procedural fairness – whether Tribunal fairly indicated applicant’s “home area” would be Colombo – whether Tribunal misled applicant by focusing on relocation – whether Tribunal’s decision sustainable on another basis in any event.

Legislation:

Migration Act 1958 (Cth), ss.91R, 425, 425(1)

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Applicant: MZZCT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1467 of 2012

Judgment of: Judge Burchardt

Hearing date: 23 April 2013

Date of Last Submission: 23 April 2013

Delivered at: Melbourne

Delivered on: 12 July 2013

REPRESENTATION

Counsel for the Applicant: Mr Fairfield

Solicitors for the Applicant: Ambi Associates

Counsel for the Respondent: Ms Burchell

Solicitors for the Respondent: Clayton Utz Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1467 of 2012

MZZCT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By his amended application filed 25 March 2013 the applicant raises what his counsel correctly, in my view, describes as a discrete point. The question raised is whether the second respondent denied the applicant procedural fairness and failed to comply with s.425(1) of the Migration Act 1958 (Cth) (“the Act”).

2. Put in summary form what the applicant says is that the way in which the Refugee Review Tribunal (“the Tribunal”) dealt with the application lead to the issue - where the applicant would live in Sri Lanka should he return there - being dealt with in a way that was unfair to the applicant.  It was submitted that the Tribunal failed to give the applicant a proper opportunity to indicate that if he returned to Sri Lanka he would in fact live in the Jaffna region, where he would face persecution.

3. Despite the skill with which the argument was propounded by counsel for the applicant in the ultimate I have concluded that his point is not made out and accordingly the application will be dismissed.

The materials put to the Tribunal

1. At CB15-22, the applicant set out a statement in which he gave details of his history and his claims to refugee status.  It is not necessary to paraphrase these at this stage because they are dealt with later.  I note that at paragraph 46 (CB21) the applicant said:

   “I genuinely believe that I have an adverse profile in Sri Lanka due to my dead brother’s affiliation with the LTTE, my work with the media, and human rights activities.”

2. In a letter from his immigration agent (CB136-137) the applicant’s claims were characterised as follows:

   “We note that political and security situation is not stable in Sri Lanka and young Tamils still face persecution at the hands of the agents of the Sri Lankan government. We submit that the applicant will be persecuted for the following Refugee Convention reasons.

   (a)Ethnicity and religion:       Sri Lankan Tamil and Hindu.

   (b)Political Opinion:               Imputed political opinion which   is not in line with the political   activities of the Government of   Sri Lanka and its agents.

   (b)Social Group:

   (i)Young male Tamil from Jaffna.

   (ii)Family member of Great Hero’s [LTTE’s dead caders] family.

   (iii)Persons worked in media in Jaffna.

   (iv)Sri Lankans Tamils in abroad suspected of being anti-Rajapakse regime.”

   We note that despite the end of the ‘war’ in Sri Lanka, persecution against Sri Lankan minority Tamils still continues and the Sri Lankan government and its paramilitary and intelligence division harass and target people whom they perceive them as either LTTE sympathisers or holding a political view which is against them. Thus, we submit that the applicant will face persecution in Sri Lanka and the Sri Lankan authorities who are the perpetrators will not provide adequate protection to the applicant to save his life.”

The decision of the delegate

1. The decision of the delegate runs from CB177-196.  Given the way the matter has proceeded, it is not necessary to deal with it in great detail.

2. The delegate set out the claims made and the legal framework.

3. It should be noted that, as counsel for applicant submitted, the applicant’s profile was analysed at CB191 as that of a recent returnee from the West and a young Tamil male from Jaffna.  Counsel also pointed to the dot point on CB192 which identified this person as at risk of human rights violations namely, “Tamils who were born in the North or the East who and are outside of the region, in particular those who reside in or seek to enter Colombo.”

4. On the same page the delegate recorded:

   “In this particular instance, the applicant has never engaged in the LTTE activities actively or forcibly; possesses a complete set of identity documentation, i.e. birth certificate, passport, expired student’s ID card, and national ID card;  has affiliation with one of the pro-government Tamil groups, the EPDP, through his deceased father; has never declared to have undertaken military training; has not claimed to have contacts with the LTTE political offices; and are not seeking to reside in Colombo.  Therefore even by the most inclusive standards applicable to the worst of the security situation in Sri Lanka, the applicant would not have been perceived as having links with the LTTE.” (emphasis added)

5. I would interpolate and make it clear that I accept counsel for the applicant’s submission that the delegate therefore found that the applicant was not seeking to live in Colombo.

Further material before the Tribunal

1. On 12 June 2012 the applicant’s migration agent wrote to the Tribunal.  At CB366 the applicant’s Convention grounds were again set out.  Convention grounds were largely those already set out at CB136 but the social groups were slightly different:

   “…

   Social group:

   a)Tamil male suspected as a supporter of Liberation Tigers of Tamil Eelam (LTTE) and having critical view against the Sri Lankan government and its armed forces.

   c)Tamil male work for a humanitarian/rehabilitation agency which works for the upliftment of North-east Tamils in Sri Lanka.

   d)Tamil young male work as a news reporter.

   e)Member of Tamils Diaspora in Australia.”

2. The country information included at CB374 an indication that government authorities had been forcibly registering and photographing Tamil citizens in the North and that there is heavy military surveillance in Northern Sri Lanka. 

3. At CB386 there was further country information which indicated that “security forces preferred to outsource much of the work of controlling major Tamil towns such as Jaffna, Vavuniya, Batticaloa and Trincomalee to non-LTTE paramilitary groups.”

4. At CB390-391, further country information showing difficulties of Tamils in the North was set out.  I interpolate again and say that I accept counsel for the applicant’s submission that the country information forwarded by the applicant’s agent showed significant risks to Tamils in the North and East of the country.  On 17 August 2012 the applicant’s migration agent wrote to the Tribunal to address a number of issues.  Relevantly for these purposes at CB564 the letter said:

   “…

   The objective of the following submission is to address the following issues.

   …

   D)Whether relocation is an option for people like the applicant.”

5. This matter was dealt with in more detail at CB589 and following.  Relevantly for these purposes at CB591 the agent’s letter says, “6.    We submit that on the basis of the recent country information, Colombo is not a possible relocation option for our client.”

6. On 10 September 2012 the agent wrote again to the Tribunal stating at CB607:

   “In regards to the above applicant, I would like to provide a further submission on relocation with latest country information by this Friday (14/09/12). Since we believe this information will be very helpful in this case, kindly request you NOT to make decision before that.”

7. At CB618 the matter was summarised as following:

   “…

   We submit that human rights violations still continue in Sri Lanka and the relocation option as submitted in the previous submission is not an option in the applicant’s case.  There is a real chance that the applicant’s name will be in the black list due to his involvement with Great Hero’s day activities and Tamil nationalist activities.”

What was said about relocation at the Tribunal

1. The critical passage in the Tribunal’s decision so far as the relocation issues are concerned is at paragraph 98, (CB659) where the Tribunal stated:

   “The Tribunal also advised the applicant that the assessment of his circumstances while living in Sri Lanka suggested that, given the periods of time he had been living in Colombo before leaving Sri Lanka both for India in 2006 and for New Zealand in 2008 and the fact that all members of his immediate family were no longer living in Sri Lanka, the Tribunal considered Colombo to be the applicant’s home area in Sri Lanka and the place he would be likely to reside on his return there.”

2. At CB679, paragraph 155, the Tribunal returned to the matter and said:

   “The Tribunal has considered the information provided by the applicant in the submissions from the second representative as to where the applicant would return to in Sri Lanka.  As put to the applicant at the hearing, the Tribunal considers that, given that the applicant resided in Colombo and supported himself while doing so from April – December 2006 and then from October 2008 – July 2009, if the applicant were to return to Sri Lanka he would return to Colombo as his home area.  Accordingly, in assessing the risk of harm to the applicant on his return to Sri Lanka, the Tribunal has assessed the country information set out above in relation to the circumstances of an individual with the applicant’s profile in Colombo rather than in other parts of Sri Lanka.”

3. Counsel for the applicant strongly submitted that this was not an accurate description of what took place. The transcript of the proceeding is in the Supplementary Court Book (“SCB”) and the relevant extract is SCB60 in these terms:

   “Now, another matter I have to consider and assessing the risk of harm to you on your return to Sri Lanka is where – whether there is anywhere in Sri Lanka you could safely live.  Now, I have to say, based on what you’ve told me, I would see – I mean the last place you lived for any significant period of time in Sri Lanka was in Colombo.  So I would regard Colombo as the place that, if you were to return to Sri Lanka, where you would then resume your residence.  Would you like to say something about that?”

4. It was this passage that then gave rise to the submissions I have referred to above.

5. In an affidavit also contained in the Supplementary Court Book, the applicant asserts at paragraphs 10-12 (SCB69-70):

   “10.  At no point in the course of the hearing do I recall the hearing member asking me where I would live when I returned to Sri Lanka.  Nor do I recall him saying to me that I would not return to the north of Sri Lanka.  Towards the end of the hearing the member said at one point something about considering where I could live safely in Sri Lanka and that I could reside in Colombo where he said I had lived before. I assumed that he meant I would be able to move to Colombo in order to live there safely in Sri Lanka.  If I had known that the member meant that I would choose to live in Colombo in the first place and not return to the north of Sri Lanka I would have told him that this was not true and told him about the many reasons why I would return to live in the north.

   11.  My lawyer has shown me paragraph 98 of the reasons for the Tribunal.  At no time do I recall the Tribunal using the words “home area”.  My lawyer has since explained to me what these words mean.  He said it means that this is the area which is my home and where I would choose to return to live.  Colombo is not my home area.  I do not recall the Tribunal member ever saying to me that Colombo is my home or that I would choose to live there.  Nor do I recall the Tribunal member saying that I would choose to live there because my immediate family no longer lived in Sri Lanka.

   12.  The Tribunal member also did not ask me any questions about my connections with Jaffna in the north of Sri Lanka.  I assumed that was because he knew that was where I came from and where I would choose to return to if it was safe for me to do so.”

6. At paragraph 15 of the affidavit (SCB70) the applicant said:

   “I assumed that it was clear that I would not reside in Colombo unless there was nowhere else I could safely live in Sri Lanka.  The Tribunal should have made clear to me that it was not a question of where I could safely live but in that all cases I would choose to live in Colombo.  That is simply incorrect.  I feel that I have been treated unfairly by the Tribunal.”

The applicant’s argument

1. Counsel for the applicant submitted that this case was all about fairness.  It was submitted that the delegate had approached the matter on the clear finding that the applicant would not be living in Colombo.  It was submitted that the Tribunal had failed to alert the applicant to the fact that his claims would be assessed on the footing that he would live in Colombo and accordingly that this meant that the applicant was denied a fair opportunity to put his case.  Counsel pointed to the well known passages in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and in particular the paraphrase of Alphaone at [29] in the following terms:

   “Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests.  That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker.  It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.   The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.  Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making a decision in question.” (Emphasis added). 

2. At [35] the High Court’s judgment continued:

   “The Tribunal is not confined to whatever may have been the issues that the delegate considered.  The issues that arise in relation to the decision are to be identified by the Tribunal.  But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.”

3. Put shortly the applicant’s submission was that the Tribunal distracted the applicant by its reference to relocation rather than a question of where the applicant would be primarily concerned to live.  Because the question of living in Colombo - as the primary likely place of residence - was not a matter in issue before the delegate it should have been brought to the applicant’s attention.

4. On this basis the applicant was denied the opportunity of persuading the Tribunal that Jaffna was his home area and of course it was submitted further that the question of relocation is, as indeed I accept is the case, different from the question of whether the applicant had a well founded fear of persecution. Harm in relation to relocation is not the same as the matters set out in s.91R of the Act.

The respondent’s argument

1. The first respondent’s submissions can be put shortly also. Counsel submitted that the precise language used at the hearing was irrelevant because the fact is, the applicant knew, the Tribunal would assess his claims on the basis that he would be living in Colombo and he was given an opportunity to reply.  It was submitted that the phraseology the Tribunal used set out at SCB60: “So I would regard Colombo as the place that, if you were to return to Sri Lanka, where you would then resume your residence” was sufficiently accurately described by the phrase “home area”. 

2. It was submitted that this was a factual matter for the Tribunal and that the applicant could in any event have asserted that he was from the north and wanted to live there. The Tribunal noted that it was submitted that the applicant was from the north but had lived in Colombo both in 2006 and 2008. 

3. Counsel pointed to paragraph 177 of the decision (CB683) which stated that the applicant would not face a real chance of serious harm in Sri Lanka and Colombo in particular.

4. It was submitted that the Tribunal’s finding at paragraph 177 was effectively that Sri Lanka was generally safe for persons such as the applicant and accordingly in any event it did not matter whether the Tribunal had assessed the matter as against the applicant living in either Jaffna or Colombo as the case may be. I do not accept this submission.  The finding was indeed made at a level of generality but was clearly limited to the part of the applicant’s claim that he faced persecution as a failed asylum seeker. 

5. Counsel referred in detail to the Tribunal’s decision dealing with the applicants family antecedents, his residence in Colombo (including a month in 2010).  Counsel pointed to the Tribunal’s finding at paragraph 150 (CB677) that:

   “...

   However, the Tribunal finds that the available country information indicates that the current circumstances for young Tamil men in Sri Lanka has changed since the defeat of the LTTE and has assessed the applicant’s claims in that context.”

Consideration

1. I have not dealt with the entirety of the materials nor the entirety of the submissions made because in my view the critical issues argued before the Court are sufficiently paraphrased above.  It should be noted that the Tribunal accepted a considerable number of the claims made by the applicant (see paragraph 152 (CB677 – 678)). 

2. Nonetheless, the Tribunal also rejected certain aspects of the applicant’s evidence and in particular his claims of more severe ill treatment upon a purported trip to the north.  That rejection is not of itself challenged in this proceeding. 

3. In these circumstances, it becomes a question of looking at the Tribunal’s decision as a whole to see whether the Tribunal did offer the applicant a meaningful opportunity to participate in a hearing and discharged therefore the requirements of s.425 of the Act.

4. In my opinion, the Tribunal squarely raised what was in its mind when the Tribunal member said, as recorded at SCB60:

   “... Now, I have to say, based on what you’ve told me, I would see – I mean the last place you lived for any significant period of time in Sri Lanka was in Colombo. So I would regard Colombo as the place that if you were to return to Sri Lanka, where you would then resume your residence. Would you like to say something about that?”

5. This made it entirely clear, in my view, that the Tribunal was going to analyse the applicant’s claims for protection on the footing that he was living in Colombo.

6. It is of course true to say the passage I have just referred to follows immediately after these words:

   “Now, another matter I have to consider in assessing the risk of harm to you on your return to Sri Lanka is where - whether there is anywhere in Sri Lanka you could safely live.”

1. Nonetheless, I think that looked at fairly and as a whole this passage could only reasonably have lead the applicant to the conclusion that the Tribunal was going to address his claims on the footing that he lived in Colombo.

2. While this is also true that the applicant’s advisors forwarded two tranches of material purporting to show why living in Colombo was impossible in the context of relocation, the fact is that the applicant had the opportunity to assert that he was going to live in Jaffna should he have wished to do so in circumstances where the Tribunal had made it plain that Colombo was going to be the focus of its deliberations.

Conclusion

1. In all the circumstances, I do not think that the use of the phrase “home area” in the Tribunal’s decision, erroneous as it might be thought to be on one view, is sufficient to suggest that the applicant was misled and deprived of fairness and not afforded a proper opportunity to be heard.  It follows that the application must be dismissed and I will so order.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date:  12 July 2013