MZZGZ v Minister for Immigration

[2013] FCCA 608

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZGZ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 608

Catchwords:
MIGRATION – Judicial review of Independent Protection Assessment – refusal of Protection (Class XA) Subclass 866 visa – Applicant not a credible witness – grounds of review unparticularised – application dismissed.

Legislation:  
Migration Act 1958 (Cth), ss.36(2), 91R(2)

1951 Convention Relating to the Status of Refugees

1967 Protocol Relating to the Status of Refugees

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia(2010) 272 ALR 14

Applicant: MZZGZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: JAY BARTLETT IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

File Number: MLG 260 of 2013

Judgment of: Judge Hartnett

Hearing date: 14 June 2013

Delivered at: Melbourne

Delivered on: 14 June 2013

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore Lawyers

THE COURT ORDERS THAT:

1. The Application filed 4 March 2013 is dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 260 of 2013

MZZGZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

JAY BARTLETT IN HIS CAPACITY AS INDEPENDENT PROTECTION ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced upon the Applicant filing an Application on 4 March 2013 for judicial review of a decision of an Independent Protection Assessor (‘the Assessor’) made on 22 October 2012.  The grounds of the Application stated are as follows:-

   “In determining that the applicant not be recognised as a person to whom Australia owed protection obligations, the second respondent:

   (a) failed to observe the requirements of procedural fairness;

   (b) made an error of law;

   (c) applied the wrong test; or

   (d) failed to take into account a relevant consideration which he was bound to take into account.”

   No particulars were provided in the Application filed 4 March 2013 of those grounds stated.

2. The First Respondent filed a Response on 13 March 2013 which sought the application be dismissed and noted that the application did not provide any particulars or any legal ground of review and, further, that the recommendation of the Second Respondent dated 22 October 2012 was not affected by legal error.  Time was abridged in respect of the application such that it was listed on 6 March 2013 at 10.00am.  On that date, the Applicant required further time for the hearing of his application.  That further time was granted and it was ordered in Order 7 of the Orders made 6 March 2013 that:-

   “7. On or before 26 April 2013, the Applicant file and serve:-

   a) any amended application including any additional grounds of review with complete particulars of each ground; and

   b) any affidavits.”

   The matter was listed for final hearing this day.

3. The matter was again before the Court on 5 April 2013 when orders were made by consent by McGuire FM (as His Honour was then).  Included in those Orders was Order 3 which stated as follows:-

   “3. Order 7 of the Orders made by Federal Magistrate Hartnett on 6 March 2013 be varied as follows:-

   “7. On or before 3 May 2013, the Applicant file and serve:-

   a) a[n]y amended application including any additional grounds of review with complete particulars of each ground; and

   b) any affidavits.”

4. The Applicant filed no amended application, nor any affidavits.  The First Respondent filed an Outline of Submissions on 7 June 2013 and a Court Book on 27 March 2013, the contents of which are in evidence before the Court.

5. The recommendation made by the Assessor on 22 October 2012 was that the Applicant not be recognised as a person to whom Australia has 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’). 

6. The Applicant seeks declaratory and injunctive relief in accordance with the High Court’s decision in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia(2010) 272 ALR 14.  The Applicant is a citizen of Sri Lanka.  He entered Australia as an unauthorised boat arrival on 1 December 2011 and was taken to Christmas Island.  On 2 February 2012, the Applicant made a request for a Protection Obligations Evaluation (‘POE’) and on 5 March 2012, a POE was referred for an Independent Protection Assessment (‘IPA’).

Claims

1. The Applicant claimed to fear harm on account of his Tamil ethnicity, Christian religion, imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (‘LTTE’) and his membership of various particular social groups including as a Tamil male and Tamil fisherman.  He also claimed he feared harm on account of his illegal departure from Sri Lanka and as a failed asylum seeker.

The Assessor’s Findings

1. The Assessor found that the Applicant did not meet the criteria for a Protection (Class XA) Subclass 866 visa as set out in s.36(2) of the Migration Act1958 (Cth) (‘the Act’). The Assessor was not satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention. Therefore the Applicant did not satisfy the criterion set out in s.36(2)(a) of the Act. Having concluded that the Applicant did not meet the Refugees Convention criterion in s.36(2)(a) of the Act, the Assessor considered the alternative criterion in s.36(2)(aa) of the Act. The Assessor was not satisfied that the Applicant was a person to whom Australia had protection obligations under s.36(2)(aa) of the Act.

Consideration

1. The application for judicial review contains four unparticularised grounds of review as set out in the Application filed 4 March 2013 and as set out herein. I accept the Submissions from the First Respondent that these grounds are meaningless in the absence of particulars.  Nevertheless, as the Applicant is a litigant in person, counsel for the First Respondent examined the statement of reasons of the Assessor to determine if any of the grounds alleged by the Applicant could be said to exist.  Counsel for the First Respondent concluded that the IPA contained no error of law that would establish a basis for the Court to grant the declaratory and injunctive relief that was sought, and concluded that the application should be dismissed with costs.

2. There is no error of law apparent in the IPA. The Assessor considered each claim raised by the Applicant and gave clear reasons for rejecting each such claim.  The Assessor’s reference to a reliance upon independent country information was uncontroversial.  The choice and assessment of that country information is a factual matter for the reviewer (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at paragraphs 11 to 13). The Assessor’s findings were all open to him on the basis of the evidence before him and it is not for this Court to review the merits of the assessor’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at paragraphs 281 and 282).

3. The Assessor’s reasons made clear that the Applicant was invited to comment on the numerous concerns that the Assessor had with the Applicant’s claims and evidence, and on the substance of adverse independent country information upon which the Assessor relied during the IPA interview.  In particular, the Assessor said in his Statement of Reasons at paragraphs 43 to 45 the following:-

   “He was caught in 2009, the Army caught him in Mandaitivu when he was going to Jaffna.  They took him to Colombo and put him in jail, they broke his hand, had him in shackles and he has scars (pointing to his forehead).  I clarified with [the Applicant] if he is talking about this occurring in 2009, to which he stated yes.  I asked [the Applicant] if he has spoken about this to any Officers from the Department, to which he responded he said it, but the Department made no mention of it.  He also mentioned that he was released after his wife paid money.  I asked [the Applicant] if he has told his adviser of this information before today, to which he responded he was chased from his house, he ran from his house and was caught a little way away, but they recorded it that he was caught at his own house.  I asked [the Applicant] if it was the first interview with the Department Officer or another interview that he spoke of this matter, to which he responded that he did not say it at the first interview that money was paid.  I asked [the Applicant] if, at his first interview with the Department, he told the Officer about being caught by the Army in 2009, to which [the Applicant] responded no, he did not say in the first interview that he was caught by the Army.  I asked him if he stated during his second interview with the Department that he was caught by the Army in 2009, to which he responded no.  I asked [the Applicant] if today was the first occasion in an interview that he has spoken about being caught by the Army in 2009 to which he responded he has said only that the Army came looking for him.  I asked [the Applicant] why today is the first occasions that he is claiming he was caught by the Army, taken away and beaten in 2009, to which he responded that in the first interview he said he was taken in 1994 / 1995, the second interview he said they came looking for him but took his brother, so he went to Jaffna and caught him and took him to Colombo and tortured and beat him.  Then his wife and two persons negotiated on his behalf, they asked for 50 laks but they only gave 25 laks for his release.  The money was given to a Muslim person.

   44.  I noted to [the Applicant] that he is making a very serious claim regarding his circumstances in 2009 and it is important that he explain why today is the first time he is speaking about it. [The Applicant] responded that he paid a person lots of money, he is a Tamil, he is a Christian and he loves God and he did not want to reveal that he gave money because it may give him problems.  I asked him what did he mean by problems, to which [the Applicant] responded his family are telling them that they don’t know where he is.  I noted to [the Applicant] this does not explain why he has not mentioned his 2009 claims before today, to which he responded that he would have told but he thought may be there would be problems for his children, and the tensions, he is not sure what to say and what not to say.  I asked [the Applicant] what would be the problems for his children, to which he stated lots of harassment, he is not there so they may take them.  They may come with the EPDP people.  I noted to [the Applicant] that I may not accept the claim he is now making regarding 2009 given he has only previously claimed serious events occurred in 1994, to which [the Applicant] did not respond.

   45.  In response to my question as to when he was last fishing, [the Applicant] stated in 2008, and when asked what he was doing for income between 2008 and up until his departure, [the Applicant] stated the Army said he could not go because he had been caught, so he paid a person to go for him from 2008 onwards.  He did not go fishing after 1994 / 1995 but he employed people to go fishing.  I asked [the Applicant] why he has said he last fished in 2008 but is now saying when he was arrested in 1994, to which he said he employed people in 2008.  I asked [the Applicant] if he is claiming he did not go out fishing in a boat for the past seventeen years, to which he responded that is correct, he was not allowed to go out fishing.”

   And at paragraphs 54 to 58 inclusive the following:-

   “54. I noted to [the Applicant] the country information I would be taking into consideration regarding Tamils in Sri Lanka is that no credible reports from a range of government and non-government organisations indicate Tamil persons are persecuted in Sri Lanka because of their race.  There is independent information that Tamils report being subject to discrimination, or treatment less than favourable than that for non Tamils, in matters such as access to further education, government employment and justice, which may be in part at least because Sinhalese and not Tamil or English is the official language.  I also noted a range of country information sources indicated that during the war over the past thirty years Tamils who have lived in certain northern areas and in Colombo were disproportionately affected by the government’s security measures and fighting between the Sri Lanka Army and the LTTE, but since peacetime the wartime Emergency Regulations and other measures have been relaxed.  [The Applicant] responded there are reports of people being abducted, he has an article from TamilNet dated 2 February 2012 titled TID arrests two Tamil fishermen in Mannar, and there was an incident two months before he was arrested in 1994 where thirty three people were shot in boats.  His house was forcibly taken by the Army.

   55. I noted to [the Applicant] the information from Sri Lanka Monitor (2002) regarding High Security Zones (HSZ) surrounding Mandaitivu Island and the Navy’s occupation of the coastline and its announcement in 2002 that it would allow resettlement beyond 200 metres from the perimeter of a HSZ on Mandaitivu Island.  I noted to [the Applicant] the information from OCHA (2010) that a portion of the Palay HSZ was released by the government for resettlement in January 2010 when it was also announced restrictions upon fishing off the Jaffna coast had been lifted and there were plans to develop the fisheries sector in Jaffna.  I noted the information from ARCOR – Human Development Centre (2010) that in January 2010 there were 116 families who had returned to Mandaitivu Island, and the Fishermen Society had members including 105 returnees from the Vanni.  I noted the information from the Centre on Housing Rights and Evictions (2009) that HSZs in Jaffna were the earliest and largest established, estimates of the total area they encompass range from 220 square kilometres and 190 square kilometres and approximately 9% of Jaffna population depend upon fishing.  I explained to [the Applicant] the relevance of this information is that in 1994 there would have been extensive Army control and Navy presence in fishing areas surrounding his birth island, and more recently there have been many previously displaced persons return to the area particularly fishermen to Mandaitivu Island.  I asked [the Applicant] if he was aware of any of these matters, to which he responded he has not spoken with many people.

   56.  I asked [the Applicant] to confirm whether it is correct he has not previously claimed to have ever been accused of being connected with the LTTE, to which he stated that is correct, he has said no.  I asked [the Applicant] if he had any concerns he may be accused of being linked with the LTTE, to which he stated because he is Tamil they may suspect that.  He left in 2009 and has been gone all this time and they may think that.  I said to [the Applicant] that people travel abroad for many reasons, so why did he consider it may be thought that he is linked with the LTTE. [The Applicant] responded because he left in a sea of problems, because of that they may suspect it.

   57.  I noted to [the Applicant] the information from DIAC (2010) and Danish Immigration Service (2010) of the types of activities the authorities may consider indicative of  a person being supportive of the LTTE, and of profiles of LTTE cadres in rehabilitation camps and the government’s release of cadres to work in southern factories to dissuade regrouping I asked [the Applicant] if he had ever had anything to do with the LTTE in the past, to which he stated some were in his village and Jaffna town and he has spoken with them in the time before the trouble, but not now.  Before he had seen them, but not helped them.

   58.  I asked [the Applicant] how he believed the abductions he had heard about in the news were relevant to his circumstances, to which he responded that he has seen information about them in the news.  I noted the information from BBC News (2012) about the white van abductions was that victims appeared to come from a wide range of backgrounds such as a businessman, young activists, Sinhalese, Tamil and Muslims, those allegedly with connections to crime networks, with many of them appearing to have been at loggerheads with the authorities.  [The Applicant] did not respond.”

   And further at paragraph 60:-

   “I noted to [the Applicant] there is a range of sources of information about airport security procedures for citizens such as himself who arrive without a passport, given he has claimed his passport upon which he departed was picket pocketed from him before he arrived in Australia.  The information is that all citizens in such circumstances, irrespective of their ethnicity, may undergo questioning by Criminal / Terrorist Investigation Department directed towards ascertaining whether the person has any outstanding arrest warrants or if they have been involved in people smuggling or money laundering.  The interviews usually go for two or three hours, during which checks are undertaken with the Police from the returnee’s district, and then when clearances are obtained the person is released to a family member.  None of the information indicates returnees who made asylum applications during their absence are viewed negatively by the authorities or experience any difficulties in their areas of return as compared to returnees who were internally displaced within Sri Lanka.  [The Applicant] did not provide any response.”

4. The Applicant was clearly afforded a reasonable opportunity to present his case and to meet the case put against him (Muin v Refugee Review Tribunal (2002) 190 ALR 601 at paragraph 99 per Gaudron J). There was no breach of procedural fairness.

5. The Assessor accepted that the Applicant was a Christian ethnic Tamil, a citizen of Sri Lanka born on 4 November 1963 in the Jaffna district where he resided until departing Sri Lanka in 2009.  He noted the Applicant’s statement that he unlawfully entered and departed Malaysia (in 2009 and 2011), where he registered with the United Nations High Commissioner for Refugees (‘UNHCR’), and Indonesia (for 10 months) prior to arriving in Australia.  He has in Sri Lanka a wife residing in the Jaffna district with his son born 1 January 1991 and his daughter born 10 October 1992.  The Assessor noted that the Applicant, when interviewed at Scherger Detention Centre on 30 March 2012, provided information that:-

   a)his employment had been in fishing helping his father between 1981 and 1990;

   b)he had married in 1990; and

   c)both his parents were deceased from natural causes and that he had nine siblings; a sister living in Norway, a brother living in London, a sister living in Sri Lanka, a brother living in Italy, a brother living in the Jaffna district, another brother living in the Jaffna district and a brother and sister, both died from natural causes and, a brother who went missing in 2007 after being arrested by the Sri Lankan Army in front of his home.

6. The Assessor rejected the Applicant’s key claims to fear harm on account of adverse credibility findings and such claims inconsistency with independent country information.  The Assessor did not accept that the Applicant had been arrested for breaching fishing boundaries in 2009, or that his brother had been arrested outside his house in 2007, on account of the Applicant’s failure to mention either of these claims until after he received his negative Protection Obligations Determination (‘POD’).  The Assessor found the Applicant’s explanations, when asked about his failure to mention these claims at an earlier stage, were unconvincing.  The Assessor said at paragraph 86 of his Statement of Reasons the following:-

   “In considering [the Applicant]’s account, I accept undue weight should not be placed on some degree of confusion or omission to conclude that he is not telling the truth, especially in the context of interviews if they are constrained by the time and the inherent limitations of interpretation and before [the Applicant] fully appreciates what is relevant and the degree of detail required.  But nor can I lightly dismiss embellishments or significant inconsistencies, such as the evidence [the Applicant] has provided regarding his younger brother being taken by the Army, when he was last actively fishing and the new claim raised at the IPA interview that he was caught, beaten and detained by the Army for eight months in 2009 and released after 25 laks was paid to a Muslim person.”

1. The Assessor found that the Applicant’s oral evidence regarding his brother being arrested and taken by the army was first raised on the third occasion he provided information about his past circumstances.  He found the Applicant’s evidence as to when he last actively fished to be contradictory.  He said at paragraph 89 of his Statement of Reasons the following:-

   “… I find it inconceivable that, in light of [the Applicant]’s 1994 incident of being detained for three months after exceeding fishing boundaries in Jaffna, that he would fail to clearly and unreservedly speak on such a similar incident occurring immediately prior to (and prompting) his departure in 2009, if indeed a similar incident (being arrested and detained for having exceeded a fishing boundary) had occurred.  I do not accept [the Applicant] has provided a plausible explanation for his first raising on the third occasion of his giving information about his past circumstances the matter of his brother’s arrest by the Army, his internally contradictory evidence when he himself was last actively fishing, and his failure to raise at any time prior to his IPA interview the claim that he was arrested and detained in Jaffna for eight months in 2009 and released after payment was made to a Muslim person.  I find [the Applicant] is not a reliable witness and on the matters surrounding his younger brother Robert’s disappearance, his own recent fishing activities and his having been detained in 2009 and I find his oral evidence lacks credibility.”

2. The Assessor accepted that the Applicant had been arrested and detained for breaching fishing boundaries in 1994 and 1995, but found this was pursuant to a law of general application which was in place to provide security around military installations in Jaffna.  The Assessor did not accept that the Applicant was detained because he was a Tamil male fisherman and/or because he was imputed as a Tamil supporter.  Further, the Assessor did not accept that the law of general application had been selectively or discriminatorily enforced against the Applicant for a Refugees Convention reason.  The Assessor accepted the Applicant’s evidence that after his release from prison in 1995 he returned to his home in Jaffna to resume his life as a fisherman.  He also accepted that he had departed Sri Lanka legally in 2009 on a passport issued in his own name.  The Tribunal had regard to the various official documents that the Applicant had submitted and found that he had returned home after his release from custody in 1995 and remained there until his departure from Sri Lanka with the full knowledge of the authorities.  The Assessor found that the Applicant had not been of any ongoing interest to the authorities since his release from custody in 1995 and did not accept that the Applicant would be perceived to be an LTTE supporter on account of his breaching a fishing boundaries in 1994.

3. The Assessor did not accept that the Applicant faced a real chance of persecution on account of his Christian religion and had regard to the Applicant’s “circular responses” to questions about the harm he feared on this basis and his evidence that he had never experienced problems in the past on account of his religion.  The Assessor had regard to independent country information on the situation for Tamils in Sri Lanka.  The Assessor accepted that some Tamils suffer discrimination, but did not accept that the Applicant fitted any of the profiles outlined or that he would experience discrimination amounting to serious harm as a Tamil.  Nor did the Assessor accept that the application would be imputed as an LTTE supporter because of his Tamil ethnicity, because he was a Tamil male or because he had fled Sri Lanka and would be returning from a western country after a lengthy absence.

4. The Tribunal had regard to independent country information on failed asylum seekers and illegal departures from Sri Lanka.  The Assessor accepted that the Applicant would be questioned on his return to Sri Lanka, but was not satisfied that his circumstances would place him at risk of being harmed during this questioning or detained for anything more than a few hours while the questioning was undertaken.  Accordingly, the Assessor did not accept the Applicant faced a real chance of persecution on these bases.

5. Nor did the Assessor accept that the Applicant faced a real chance of persecution as a Tamil fisherman. The Assessor found that past restrictions placed on the Applicant’s fishing were in accordance with the law of general application and that those laws had been relaxed in 2010. The Assessor also found that since the Applicant had been displaced from his island to Jaffna in 1990 and restrictions had been placed on his fishing, he had not suffered serious harm within the meaning of s.91R(2) of the Act. Accordingly, the Assessor found there was no real chance the Applicant would face persecution as a Tamil fisherman. The Assessor also found the Applicant was apolitical and rejected that he faced a real chance of being subject to “white van abductions” or extra judicial killings in Jaffna as he claimed.

6. The Assessor found that even considering the Applicant’s claims cumulatively, he did not accept that the Applicant faced a real chance of persecution for any Refugees Convention reason on his return to Sri Lanka.  For essentially the same reasons, the Assessor also did not accept that the Applicant faced a real risk of significant harm on his return to Sri Lanka or that he was owed protection obligations under the complimentary protection criteria.

7. In arriving at his findings the Assessor carefully considered the independent country information provided by the Applicant’s representative, but placed greater weight on his own independent country information from official sources.  Nowhere does it appear that there was a failure on the part of the Assessor to take into account a relevant consideration. The Assessor engaged in a clear and cogent assessment of the claims raised by the Applicant.  The Assessor had considerable concerns as to the credibility of the Applicant and essentially did not accept the claims made by the Applicant. 

8. There is no error of law attending the statement of reasons of the assessment and the application is dismissed.  Costs should follow the event.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett.

Associate: 

Date:  27 June 2013