MZZER v Minister for Immigration

[2013] FCCA 789

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZER v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 789

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal decision – assertion that Tribunal misconstrued test of “real chance” of persecution – assertion Tribunal failed to alert applicant to consequences of his advancing fabricated documents – criticisms of Tribunal not made out – application dismissed. 

Legislation:
Migration Act 1958 (Cth)

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Applicant: MZZER

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1672 of 2012

Judgment of: Judge Burchardt

Hearing date: 17 May 2013

Date of Last Submission: 17 May 2013

Delivered at: Melbourne

Delivered on: 17 July 2013

REPRESENTATION

Counsel for the Applicant: Mr Wood

Solicitors for the Applicant: Ravi James Lawyers

Counsel for the First Respondent: Mr Smith

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed. 

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.00. 

3. The First Respondent’s name be changed by inserting the words ‘Multicultural Affairs’ after ‘Immigration’. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1672 of 2012

MZZER

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an amended application filed on 11 April 2013, the applicant seeks judicial review of a decision the Refugee Review Tribunal (“Tribunal”) dated 5 December 2012. 

2. The applicant raises two grounds of application.  The first is that “The Tribunal misconstrued the forward-looking “real chance” test in considering the applicant’s claim to have a well-founded fear of persecution arising from his membership of a particular social group, being “wealthy Tamil businessmen”.”  The second is that the Tribunal failed to exercise its jurisdiction or otherwise fell into jurisdictional error in the way it dealt with various documents submitted by the applicant to the Tribunal. 

3. For the reasons that follow, I do not think that the Tribunal fell into jurisdictional error and the application must therefore be dismissed. 

Facts which are not controversial

1. The following is taken from a combination of the parties’ written submissions and the Court Book (“CB”) materials.  The matters asserted are not, as I understand it, controversial. 

2. The applicant is a Sri Lankan citizen of Tamil ethnicity.  He was born in Batticaloa, Sri Lanka in 1982, but at a young age went to live with his uncle in Jaffna as a result of fears he would be recruited by the LTTE.  He was trained by his uncle as a goldsmith and jeweller, although he was forced to relocate to various other areas from time to time, owing to the civil war. 

3. In 2006 on two occasions, he was subjected to questioning and ID checks by the Sri Lankan authorities in the Northern province.  He was interrogated and on each occasion was subjected to physical abuse. 

4. In September 2006, the applicant’s uncle was shot at the family jewellery store and the applicant ran away. 

5. The applicant claimed that in February 2007, whilst he was on a motorcycle, he was the subject of further threats and asked about where his uncle was.  The applicant further claimed that in July of 2007 he was again questioned about his uncle’s whereabouts. 

6. The applicant claimed that in February 2012, a very similar incident occurred again, and he was threatened with being shot as part of the incident.

7. The applicant left Sri Lanka illegally and arrived in Australia in April 2012. 

8. On 2 July 2012, the applicant applied for a Protection visa.  That claim was refused by a delegate in circumstances to which I will return.  That refusal has led to this proceeding. 

The applicant’s claims as articulated from time to time

1. At CB18, as part of the Irregular Maritime Arrival Entry Interview, the applicant’s claims were recorded.  He referred to the incident in 2006 when his uncle was shot and he said he himself was threatened.  Nothing else was alleged until 2012 when the incident to which I have already referred was referenced. 

2. At CB60-66, a Statutory Declaration of the applicant is set out.  This refers to harassment by the Sri Lankan authorities in a general way, the incident involving his uncle being shot in 2006, the two threats to the applicant personally in 2007, the threats in 2012 and the fact that after the applicant left Sri Lanka in March 2012, his brother had been threatened by men on a motorcycle and asked questions about the motorcycle’s owner.  At CB65, the applicant expressly raised the ground which has formed the focus of this application.  Namely that:

   “I fear that I will be harmed owing to my Tamil ethnicity, my status as a wealthy Tamil as well as my relationship with my uncle.”

   He also asserted a fear of harm as a failed asylum seeker.

3. CB95 and CB97 contain two documents which are the subject of ground 2 of this application.  The first purports to be a document from the International Committee of the Red Cross under the heading “Detention Attestation” (the applicant has never claimed to have been the subject of detention). 

4. At CB97, there is a document purporting to be from the “Human Right Commission of Sri Lanka”.

5. At CB108 and following, there is a lengthy submission from the applicant’s agent.  This refers to the proposition that the applicant would suffer harm as a wealthy Tamil businessman and as a failed asylum seeker.  It contains substantial country information. 

6. At CB144 and following, the decision of the delegate is set out.  It should be noted that the delegate did not accept that the applicant would, in fact, be seen as a person of wealth and would not, therefore, face harm on the basis of being a wealthy Tamil businessman (CB164-165). 

7. At CB154-155, the delegate recorded what he put to the applicant about the two documents to which I have referred above.  Relevantly the delegate said:

   “The applicant has submitted a letter purporting to be from the International Committee of the Red Cross (ICRC).  The document is titled, ‘Detention Attestation’ and purports to advise the applicant was visited by ICRC delegates on the 12/02/2007 in Colombo.  I asked the applicant to explain the document from the ICRC.  He initially advised when he was in Jaffna his brother had made a complaint.  I asked the applicant if this was to the Human Rights Commission or the ICRC.  He responded that his brother was the one who made the complaint to the HRC in 2007.  I presented the document from the ICRC to the applicant and advised him that this document was referring to a ‘detention attestation’.  He responded that at that time it was difficult to leave Jaffna as it was under the control of the Sri Lankan army.  I put to the applicant that the document is referring to someone from the ICRC visited him on 12/02/2007.  He responded that they asked for evidence of the shooting of his uncle and after this they issued the document.  I put to the applicant that the document was referring to his being detained.  He responded that he was in a controlled area.  I put to the applicant that I am not convinced the document is genuine.  He responded that it was his brother who obtained the document.  I put to the applicant that he had not mentioned he had been detained.  He stated that he had been assaulted by the army on suspicion of being LTTE.  I pointed out to the applicant if the ICRC would really state, ‘pathetic situation’ in their documents.  I asked the applicant if he was aware of the letter he has submitted.  He stated that his brother gave it and he does not know.”

8. It should be noted that the delegate did not, as far as I can see, make an express finding about the document to which reference has been made, notwithstanding the doubts expressed to the applicant.  Nonetheless, the applicant could scarcely have been under any doubt that the genuineness or otherwise of the document was significantly in issue and it seems to me, on a fair reading of the delegate’s decision (no submission has been made that it is an inaccurate record) that the applicant did indeed adopt the document as being true as part of his case. 

9. At CB193 and following, there follows a further submission by the applicant’s agent.  It advanced a number of asserted bases of possible fear of harm, of which the fear of risk as a wealthy Tamil businessman is the only one that is still relevant.  No additional factual claims personal to the applicant were advanced in the submission. 

The Tribunal’s decision

1. The Tribunal set out an introductory analysis of the application’s history, together with the relevant law at CB226-228.  The Tribunal then set out a synopsis of the applicant’s Claims and Evidence at CB229-231.  No criticism of any of these matters has been advanced on behalf of the applicant. 

2. The Tribunal then set out at CB231-234 a record of what took place at the hearing.  Once again, no criticism has been made to suggest that the matters there recorded are inaccurate.  It should be noted that the applicant’s accounts of the 2007 incidents were the subject of questioning by the Tribunal member who felt there were a number of inconsistencies.  The Tribunal also put matters to him arising from the Human Rights Commission document.  The relevant matters are recorded at paragraph 34 (CB232-233) as follows:

   “… I put to the applicant that I had concerns about the copy of the complaint docket to the HRC because it used the term “Human Right Commission” without the plural of “s” in the word “Right” and that this may make me think that the document was not authentic and cast doubts about his creditability.  He said his brother told him this and he was in Jaffna.  The applicant said the HRC did not question him.  I further put to the applicant for comment that I had concerns about the authenticity of the ICRC document because it referred to a “detention attestation” and he wasn’t detained; that it said he was visited by an ICRC delegate and he wasn’t; and that the use of the wording “pathetic situation in Sri Lanka” was not the type of wording that would be consistent with the use by an official body.  He said the brother had obtained the document for his protection and there was a war going on.  They may have visited him and he may not have been there but he was not sure.”

3. It should be noted that at paragraph 38 (CB233) the Tribunal clearly accepted that the applicant was a wealthy man by Sri Lankan standards, contrary to the finding of the delegate.

4. The Tribunal set out Independent Country Information at CB234-240.  Relevantly for these purposes, in relation to the question of wealthy Tamil businessmen, the Tribunal set out under the heading “Extortion” at paragraph 52 (CB240):

   “In September 2010, DFAT noted that there had been reports that the “EPDP demands payments from tamil businesses in Jaffna”.  DFAT also noted that “some businesses in Batticaloa District have been asked to make payments to individuals associated with local political/paramilitary groups in return for not being harassed/threatened”.  DFAT further noted that “Police (CID/TID) imposters and paramilitary cadres have threatened to label individuals as LTTE activists if payments are not made”.”

5. The Tribunal set out its Assessment of Claims at CB240 and following.  The Tribunal accepted a substantial number of the applicant’s claims.  The Tribunal accepted that the applicant moved to his uncle’s in Jaffna at a young age, because of fear of being recruited into the LTTE.  The Tribunal accepted that he and his uncle’s family had to relocate from time to time, owing to the conflict.  The Tribunal member accepted that the applicant had been subject to checks by the authorities and that he was hit on the back on one occasion and hit with a stick and suffered injuries to his foot on another.  The Tribunal accepted that the uncle had been threatened in Jaffna in 2006 and shot outside his shop and that the applicant ran away.  The Tribunal accepted that the uncle fled Jaffna and later left for overseas. 

6. The Tribunal accepted that the applicant had opened his own jewellery store in 2006 and that this was successful, making 150,000 rupees a month, which is a substantial amount in Sri Lankan terms. 

7. Critically, however, the Tribunal did not accept that the applicant was targeted in 2007 and 2012 as claimed or that since his departure from Sri Lanka his brother was threatened and inquiries were made about his whereabouts.  The Tribunal’s reasons for this are at CB241.  They may be paraphrased as follows:

   a)The Tribunal felt that the applicant gave inconsistent evidence of a significant nature in relation to the February 2007 incident. 

   b)The HRC and ICRC documents submitted by the applicant were fabricated and the applicant’s willingness to submit documentation of this character detracted substantially from his creditability.  (No challenge, it should be noted, has been made to the Tribunal’s finding that the documents were fabricated, which was clearly open to the Tribunal on the evidence). 

   c)More than five years had passed since the uncle was shot and more four years since the claimed incidents in 2007.  The Tribunal found it far fetched and implausible that the same men (as the applicant asserted) would still be pursuing him about his uncle in 2012.  The Tribunal clearly, therefore, did not accept any assertion that the applicant had been the subject of any threat or mistreatment after 2006. 

8. Under the heading “Wealthy Tamil businessman claims”, the Tribunal found at paragraph 61 (CB243):

   “I have accepted that the applicant’s uncle was targeted for extortion in 2006 and that he was shot by unidentified men because of this.  I also accept that the applicant is wealthy man by Sri Lankan standards and that his business did and continues to do very well.  However, as previously found I do not accept that the applicant or his family have been subjected to any targeting or adverse treatment as claimed in 2007 and 2012.  I accept that “wealthy Tamil businessmen” do constitute a particular social group in Sri Lanka and there is some independent evidence that police imposters and paramilitaries do extort businesses in Jaffna and in Sri Lanka.  The applicant and his brothers have been conducting a profitable jewellery business in Jaffna for a long period and they have not been the subject of any extortion threats.  Given this and considering the country information, I do not accept that there is a real chance that the applicant will be subjected to extortion threats or face a real chance of persecution on account of his membership of the particular social group of “wealthy Tamil businessmen” now or in the reasonably foreseeable future.  Nor do I accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka that there is a real risk of the applicant suffering significant harm for these same reasons.”

9. The Tribunal, of course, dismissed the applicant’s various other claims of possible feared harm, but these are no longer relevant. 

Ground 1

1. Notwithstanding the skill with which the submissions were advanced, the submissions of counsel for the applicant were relatively short.  Counsel for the applicant pointed to the fact that the real chance of harm is a forward-looking test.  It was submitted that the test has been described as being satisfied if persecution in the future is a reasonable possibility (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at [389]).

2. I accept that that submission is soundly based. 

3. The nub of the way the matter is put is contained, perhaps, at paragraphs 15 and 16 of the applicant’s written submissions as follows:

   “15.  Yet, despite the Tribunal now accepting that the applicant was a member of the particular social group, and despite the Tribunal accepting that the evidence revealed that members of that group were subject to persecution (and that the uncle in particular had been subject to persecution), the Tribunal concluded that there was not a “real chance” that the applicant would be subject to such persecution.  It did so on the basis of its finding that the applicant had not in fact himself been extorted in the past.

   16.  In so doing, the Tribunal revealed that it failed to understand the forward-looking “real chance” test that is to be applied in assessing an applicant’s claim to be a refugee. …”

4. At paragraph 17, the applicant’s written submissions continue:

   “Yet the only basis upon which the Tribunal concluded that there was not a real chance that the applicant, as a member of a particular social group whose members were subject to persecution, would be persecuted in the future was that the applicant had not in fact been persecuted in the past.  It follows that the Tribunal clearly miconstrued the “real chance” test in determining this integer of the applicant’s claim.”

5. The first respondent’s submissions by way of contrast submitted in short that “the Tribunal’s approach was entirely orthodox”. 

6. In these circumstances, it is a matter of looking at the Tribunal’s decision to see if it can be discerned whether on a fair reading the Tribunal did or did not properly apply the “real chance” test. 

7. In my view, the Tribunal was clearly aware that some (by no means all) wealthy Tamil businessmen in Jaffna (where the applicant had lived) had been the subject of extortion.  The Tribunal relevantly found that the applicant’s uncle had been the subject of attack in 2006, but that otherwise, no harm had been visited upon the applicant, even though he had been operating his own business successfully there since 2006. 

8. For the Tribunal to say in these circumstances that the chances of harm in the future were not sufficient to grant a refugee finding seems to me to have been entirely open to it.  This ground must fail. 

Ground 2

1. What was put here by the applicant was that the Tribunal in substance found that the applicant had participated in the fraud sought to be perpetrated by the two fraudulent documents.  It was put that this should have been put to the applicant.  It was also submitted that the applicant was the subject of massive creditability findings arising out of these documents and that these concerns should also have been put to the applicant. 

2. A further subsidiary submission that the Tribunal failed to make appropriate inquiries was expressly abandoned by counsel for the applicant at the hearing before the Court. 

3. The first respondent submitted that, in fact, the Tribunal did not find that the applicant participated in the forgery.  It was submitted that all the applicant did was to produce the documents to the Tribunal and that the only finding made was that the applicant gave irregular documents to the Tribunal. 

4. It was submitted that the Tribunal had squarely put these concerns to the applicant at paragraph 34 on CB232-233 in the passages I have set out above. 

5. I think the Tribunal’s finding (CB241) that “The applicant has submitted documentation to support these claims that has been fabricated and his willingness to do so detracts substantially from his creditability” was fully open to the Tribunal in the circumstances.

6. As earlier noted, no criticism has been made of the Tribunal’s finding that the documents were fabricated and given their terms and the circumstances in which they were said to have arisen (as described by the Tribunal at CB241) that finding was plainly open to the Tribunal to make. 

7. It seems to me that, at least on one view, the applicant did indeed adopt the documentation, as it were, as his own.  He had been made aware by the delegate that the authenticity of one of the documents was very much in issue.  He chose, nonetheless, to continue to advance it as a genuine document as part of his claim.  The same is true in the sense that the second document was the subject to express challenge by the Tribunal.  While the applicant gave what might be seen as temporising answers, the fact that he was prepared to put forward a document that the Tribunal found to be fabricated was plainly a matter the Tribunal was, in my view, entitled to take into account. 

Conclusion

1. Neither of the two grounds advanced on behalf of the applicant have been made out and it follows that the application must be dismissed with costs. 

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  17 July 2013