MZZEQ v Minister for Immigration

[2013] FCCA 1021

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZEQ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1021

Catchwords:
MIGRATION – Refugee Review Tribunal – whether the tribunal considered the applicant’s claims and the intersection of those claims.

Applicant: MZZEQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1671 of 2012

Judgment of: Judge Riley

Hearing date: 26 June 2013

Date of Last Submission: 26 June 2013

Delivered at: Melbourne

Delivered on: 26 June 2013

REPRESENTATION

Counsel for the Applicant: Daniel McGlone

Solicitors for the Applicant: Ravi James Lawyers

Counsel for the Respondent: Martin Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The applicant have leave to amend the application filed on 21 December 2012 and amended on 6 May 2013 in terms of the document submitted to chambers on 25 June 2013.

2. The application filed on 21 December 2012 and amended on 6 May 2013 and further amended on 26 June 2013 be dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1671 of 2012

MZZEQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for a review of a decision of the Refugee Review Tribunal.  The applicant seeks leave to amend his application today.  The amended application filed on 7 June 2013 set out the following grounds of the application:

   The Refugee Review Tribunal (“the Tribunal) failed to exercise or acted in excess of jurisdiction and erred in law because the tribunal failed to consider

   (a)A claim raised by the applicant that he had a wel (sic) founded fear of persecution by reason of his Tamil ethnicity.

   (b)A claim raised by the applicant that he had a well-founded fear of persecution by reason of being a returned asylum seeker.

2. By an email sent to my chambers yesterday, the applicant indicated a desire to further amend the grounds of review to include the following additional ground:

   The Tribunal failed to exercise or acted in excess of jurisdiction and erred in law because he (sic) failed to consider:

   (a)A claim raised by the applicant that there was a real risk he would suffer significant harm by reason of his Tamil ethnicity.

   (b)A claim raised by the applicant that there was a real risk he would suffer significant harm by reason of being a returned asylum seeker.

3. The difference between the existing grounds and the proposed amended grounds is that the applicant now wishes to rely on a claim that the applicant would suffer significant harm as opposed to serious harm.  The proposed amended grounds relate specifically to the question of complementary protection.

4. The question of whether the proposed further amended grounds have substance has been argued fully before the court today in the context of considering whether leave to amend should be granted.  Although there are numerous matters to consider in deciding whether to grant leave, I consider it is appropriate in the circumstances of this case for the leave to be granted and for the matters to be dealt with in the ordinary way, given that they have been fully argued.

5. The applicant claimed that he is a Tamil from Sri Lanka.  He further claimed that he worked for a member of the UNP who was kidnapped.  Subsequently the applicant claimed that the CID came looking for him.  He also said that he lived in a Tamil village that was very close to a Sinhalese town.  He, in addition, said that he feared persecution and significant harm because he had left Sri Lanka illegally and because if he returned he would do so as a failed asylum seeker.

6. The written grounds that the applicant has raised are that the tribunal failed to consider the applicant’s Tamil ethnicity and the fact that he would be a returned asylum seeker.  In oral submissions, the applicant emphasised that it was the intersection of the applicant’s claims that put him at risk. It was argued that the tribunal did not consider the intersection of the two claims. 

7. The tribunal rejected the applicant’s claims in relation to his work or alleged work for a politician and the related claims.  The tribunal, in paragraph 99 of its reasons for decision, concluded that it did not accept that the applicant was at any risk in relation to the rejected claims flowing from the applicant allegedly having worked for a politician.  That left the claims that the applicant faced persecution as a Tamil, that he faced persecution as a returned asylum seeker, that he faced persecution for having departed Sri Lanka illegally and that he faced significant harm for the same reasons. 

8. The tribunal concluded in paragraph 100 of its reasons that, having regard to country information about the current situation in Sri Lanka, the applicant did not face a real chance of persecution for reasons of his Tamil ethnicity.  The tribunal went on to say in paragraph 101 of its reasons:

   The Tribunal also notes the country information cited above and also provided by the applicant’s adviser.  The Tribunal refers specifically to the UNHCR advice that there is no longer a need for group-based protection mechanisms or a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country.  The Tribunal finds that the applicant does not fall within any of the potential risk profiles identified by the UNHCR.  The Tribunal accepts that the country information indicates that individuals who are suspected of actively supporting or otherwise being involved with the LTTE continue to face a real chance of suffering serious harm in Sri Lanka.  However, it does not accept that the country information suggests a Tamil person will be imputed to be a supporter or to be involved with the LTTE solely on account of their ethnicity.  The Tribunal has had regard to the applicant’s adviser’s contentions that there is no durable peace in Sri Lanka and the continuation of systematic human rights abuses directed at Tamils now and in the reasonably foreseeable future.  On the basis of the country information before it, the Tribunal does not accept that the current circumstances in the country are such that they “are a recipe for increasing political instability and ethnic discord” or that they will result in a worsening or deterioration of the current situation.  Considering the applicant’s profile as a Tamil who has not experienced any difficulties in the past from the authorities and has no association with the LTTE, the Tribunal does not accept that there is a real chance that he will face serious harm for reason of his Tamil ethnicity, now or in the reasonably foreseeable future.

9. In relation to the question of the applicant being a failed asylum seeker, the tribunal said at paragraph 102 of its reasons for decision:

   The applicant also made claims in relation to his return to Sri Lanka as a failed asylum seeker.  On the basis of the independent country information put to the applicant in the hearing, the Tribunal does not accept that there is a real chance he will face persecution as a failed asylum seeker if he is returned to Sri Lanka.  The Tribunal notes the country information which suggests the absence of procedures in place which would allow the Sri Lanka authorities to identify the applicant as a person who had sought protection in Australia.  However, even if such an identification were made, the Tribunal does not accept that the applicant would suffer any harm beyond, at most, being detained for some hours on arrival for questioning, which the Tribunal does not accept amounts to serious harm.  The Tribunal refers to the independent country information available which indicates that returned asylum seekers are usually detained for some hours while their identity is checked.  They may be questioned during this period.  The Tribunal notes that there are other reports which suggest that periods of detention may be for far longer or that the returnees may be subjected to various forms of abuse.  However, the Tribunal notes that these reports repeatedly refer to this being as a result of perceived or actual links with the LTTE or opposition to the current Sri Lankan government.  In light of the country information, the Tribunal does not accept that a person identified as a failed asylum seeker from a Western country will face a real chance of serious harm in Sri Lanka solely because they are so identified unless they are also perceived to be actively supporting the LTTE or opposed to the current Sri Lankan government for some other reason.

10. I also note paragraphs 107 and 108 of the Tribunal’s reasons for decision, which are as follows:

    107.The Tribunal accepts some human rights organisations have claimed that failed asylum-seekers who have been returned to Sri Lanka have been detained, mistreated and even killed.  However, the Tribunal does not accept on the information available that these people were detained because they were members of the particular social group of failed asylum-seekers or because of any political opinion imputed to them as a result of having sought protection in a country like Australia.  Despite the applicant’s advisor’s concerns regarding the dependability of information provided by the official sources with regard to the treatment of returnees, the Tribunal places more weight on this information than the claims made by these organisations, which to a large extent is anonymous and provides little evidence that Tamils in general are at risk on return to Sri Lanka.

    108.For the reasons provided above, the Tribunal do (sic) not accept that there is a real chance that the applicant will be detained, harassed, tortured or otherwise persecuted for any reasons of his membership of the particular social group of failed asylum-seekers or any political opinion imputed to hum on the basis of his having sought protection in Australia, particularly Melbourne, if he returns to Sri Lanka now or in the reasonably foreseeable future.

11. In relation to the applicant’s illegal departure from Sri Lanka, the tribunal said at paragraph 109 of its reasons:

    The Tribunal has considered whether the applicant faces a real chance of persecution as a result of his illegal departure from Sri Lanka. The Tribunal refers to the country information and accepts that the applicant may have breached the terms of Sri Lanka’s Immigration and Emigration Act. The Tribunal notes that according to the information from the Australian Department of Foreign Affairs and Trade, cited above, penalties for such a breach are seldom enforced and if the authorities consider the person has unknowingly been duped into joining a people smuggling venture, they will not be fined or charged. The Tribunal notes in particular recent advice from DFAT that people being intercepted on people smuggling boat ventures in Sri Lanka are being considered “victims” and being issued fines as a deterrent to joining boat ventures in the future, instead of custodial sentences. The Tribunal particularly notes information cited above that in Post’s experience up until 16 October 2012, no failed asylum seekers who have returned from Australia have been charged under the I&E Act Section 45(1)(a) for offences related to their irregular departure from Sri Lanka on their arrival back in the country. Even if the Tribunal accepted that the applicant would face a penalty for departing Sri Lanka illegally, the Tribunal finds that this would not represent more than the enforcement of a law of general application, or that the applicant would be singled out for prosecution, or for heavier penalties, in a discriminatory fashion for a Convention reason.

12. At paragraph 110 of its reasons, the Tribunal said:

    Considering the applicant’s claims both individually, and cumulatively, the Tribunal does not accept the applicant faces a real chance of persecution for reason of his Tamil ethnicity, his membership of a group of failed asylum seekers, his illegal departure from the country or any other Convention reason. (emphasis added)

13. In relation to complementary protection, the tribunal dealt with the question of the applicant’s return to Sri Lanka in paragraph 113 of its reasons as follows:

    Having regard to the definition of significant harm in s.36(2A) of the Act as set out under the heading ‘relevant law’ above, and the findings of the Tribunal above, the Tribunal does not accept that what the applicant might experience upon return to his home in Sri Lanka will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.  As discussed above, the Tribunal does not accept that the applicant worked as a driver for a high profile UNP member, prominent businessman and journalist and was witness to this person’s alleged abduction, therefore the Tribunal does not accept that the applicant has been of any adverse interest to the CID or anyone else because of an imputed political opinion in support of the UNP, his Tamil ethnicity, his membership of a particular social group of “drivers of political members” or as a witness to an alleged abduction.  Nor does the Tribunal accept that the applicant has experienced any difficulties in the past because of his Tamil ethnicity.  The Tribunal notes the applicant has made general claims of past discrimination from authorities and the Sinhalese community however he has not elaborated any further as to what form this discriminations has taken.  In light of the available country information, the Tribunal does not accept the harassment and discrimination faced by people of Tamil ethnicity generally in Sri Lanka as amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment.  Accordingly, in light of the relevant definitions set out at s 5(1) of the Act, and the fact that the applicant did not experience any problems prior to his departure from Sri Lanka, the Tribunal does not accept that there is a real risk of the applicant being killed, arbitrarily detained, tortured or subjected to inhumane or degrading treatment or punishment from the CID or the Sri Lanka authorities generally.

14. Also in relation to illegal departure and complementary protection, the tribunal said at paragraph 114 of its reasons for decision the following:

    The Tribunal notes the applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty.  As noted above, the country information indicates that penalties may include fines and significant prison sentences.  The information also indicates, however, that in practice such penalties are seldom enforced unless the person is regarded as having been an organiser of an immigration fraud, has an outstanding arrest warrant or is on a ‘black list’ held by the Department of Immigration and Emigration.  The Tribunal does not accept that the applicant falls into these categories so that he would either face a real risk of significant harm or would attract such penalties under the law that would constitute significant harm.

15. In relation to being a failed asylum seeker and complementary protection, the tribunal said at paragraph 115 of its reasons:

    The Tribunal is also not satisfied on the country information that he would face significant harm on arrival in Sri Lanka as a person who had failed to obtain protection in Australia.  As discussed above, the Tribunal accepts that the applicant as a Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka.  However, based on the country information, the Tribunal does not accept that the process of questioning amounts to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.  The Tribunal also finds that even if the Sri Lankan authorities seek information from the applicant about the process by which he departed Sri Lanka, as the applicant’s adviser has contended, the Tribunal does not accept on the independent information that there is a real risk of the applicant being questioned in a way that amounts to significant harm.  The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant’s return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which he may be subject to. (emphasis added)

16. At paragraph 116 of its reasons for decision, the Tribunal said:

    Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm.  (emphasis added)

17. It seems to me on the basis of the consideration set out above that the tribunal clearly considered each of the claims the applicant made and the intersection of them.  The tribunal was very well aware of every one of the applicant’s claims. The tribunal dealt with them in considerable detail and with considerable care.  The tribunal specifically noted that it had considered the claims both cumulatively and individually in relation to both persecution and complementary protection.  There is no substance in any of the applicant’s grounds in this case. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  5 August 2013