MZZHM v Minister for Immigration

[2014] FCCA 143

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZHM v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 143

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal decision – grounds of application either misconceived and/or merits review – assertion that hearing unfairly conducted – court listening to tape of and reading transcript of Tribunal hearing – applicant’s assertion of unfairness not made out – application dismissed. 

Legislation:  
Migration Act 1958 (Cth), ss.36(2aa), 424A(1), 424A(3)(a)

Applicant: MZZHM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 278 of 2013

Judgment of: Judge Burchardt

Hearing date: 19 November 2013

Date of Last Submission: 19 November 2013

Delivered at: Melbourne

Delivered on: 13 February 2014

REPRESENTATION

Counsel for the Applicant: Mr Vadivelu

Solicitors for the Applicant: Mano Associates

Counsel for the First Respondent: Ms Whittemore

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the first respondent be amended to “Minister for Immigration and Border Protection”.

2. The application be dismissed. 

3. The Applicant pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 278 of 2013

MZZHM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 7 March 2013, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 1 February 2013.  The application lists six separate grounds of application identifying matters in respect of which the Tribunal is said to have fallen into jurisdictional error. 

2. The written submissions of the first respondent assert, in summary, that each of these grounds of application either misconceives the law, or what the Tribunal did or said, and in any event in large part constitute merits review. 

3. Additionally to the matters raised in the grounds of application (not all of which were equally pressed at the hearing) the applicant’s advocate asserted that the conduct of the hearing had been unfair.  I have read the transcript of the proceeding in the Supplementary Court Book (“SCB”) and listened to the audio tapes of the Tribunal hearing.  I do not think that the criticism advanced can be sustained. 

4. For the reasons that follow, I should make it clear that I think that the first respondent’s submissions are correct and the application will be dismissed with costs. 

Materials in the Court Book

1. The applicant’s arrival entry interview is at Court Book (“CB”) 2-15.  At CB11, the applicant was asked why he had left his country of nationality.  He claimed he was tortured by the army and feared for his life and left Sri Lanka because he is a Tamil.  He said he was taken to an army camp in May 2008 and released after three years.  He alleged that following his release he had been stopped by the army and pushed to the ground and hit with a rifle in approximately December 2011 to January 2012.

2. In answer to a question as to whether any of his family had been involved in any activities, political groups or protests against the government, the applicant indicted “No.”. 

3. At CB15, in responding to what he thought would happen to him if returned to Sri Lanka, the applicant said:

   “The CIDC will take me and put me in the camp again … They will lock me up … Because if they know you went to another country and returned they put you in the lock-up; they also put out announcements on the RADIO that you shouldn’t go to AUSTRALIA.”

4. The applicant filed a statement in support of his application for a refugee visa (CB52-54).  He summarised his claims (to which he reserved the right to provide further information).  The applicant repeated his claim to have been interned in a camp, the date given being in 2009.  He said he was tortured, threatened and questioned constantly by the army in the camp as to whether he was a member of the LTTE.  He said he was threatened with being killed like his father (who died of bomb blasting in 2009 see CB52) if he was found to be a member of the LTTE.  Following release in 2011 he returned to his village in Mullaitivu and in November 2011 was stopped by the army and pushed to the ground just because he was Tamil and hit with a rifle.

5. At CB 53 the applicant claimed two weeks before he came to Australia he was stopped by CID on his way to the beach to prepare for fishing the following the day.  The CID officer allegedly told the applicant he should come to a meeting with a Minister called Namal Paksa on the following day but the applicant refused.  The applicant said he was threatened with being shot there and then and that the police officer put a red mark on the back side of his photo.  This scared the applicant because he was aware that some people who had had red marks before went missing.  The applicant said that as a result of his fears from this incident he came to Australia, although not before his mother told him that CID had come to her house looking for him.  The applicant also raised a fear of being persecuted because he had left Sri Lanka illegally and for being Tamil.  He claimed he would be persecuted by the CID because he had escaped from them and for being Tamil. 

6. The applicant also submitted, with the various papers he filed, a letter from the Parish Priest of St Peter’s Church in Mullaitivu, although it is fair to say that this letter is somewhat general in its terms.  (CB63). 

7. The applicant appointed Vrachnas Lawyers to act for him and they wrote to the Department on 18 September 2012.  This submission articulated the applicant’s claims again (CB92-104).  The summary of claims set out in CB92-93 is entirely consistent with the claims made up to that time by the applicant.  Most of the submission consists of country information dealing with continuing difficulties faced by Tamils in Sri Lanka and the difficulties faced by those who return to that country having sought asylum in a western country. 

8. The written submissions directly addressed the issue of the complementary protection provisions in s.36(2aa) of the Migration Act 1958 (Cth) (“the Migration Act”) and claimed that the applicant was at risk of significant harm within the meaning of the legislation because of the situation in Sri Lanka.

9. The decision of the delegate runs from CB110-132.  The applicant’s claims, as articulated to the delegate, are set out at CB113-114 and are once again entirely consistent with what had been earlier asserted.  It is sufficient to say, for these purposes, that the delegate did not regard the applicant’s story as entirely truthful and came to the conclusion that he was not a person of sufficient interest to be likely to face persecution or significant harm upon return to Sri Lanka.  Prominent amongst the delegate’s conclusions was the fact that the applicant had applied for and had been granted a genuine Sri Lanka passport in April 2012, this being a matter the delegate felt suggested that the applicant was not the subject of adverse interest or likely to be the subject of adverse interest from the Sri Lankan authorities.  

The Tribunal’s decision

1. No further materials were forwarded to the Tribunal by or on behalf of the applicant although I note an article at CB166 about cadetting platoons from Mullaitivu and Killinochchi which is referred to in the Tribunal’s decision. 

2. I do not propose to paraphrase the Tribunal’s decision in laborious detail as the grounds of application are relatively focused and it is appropriate to record only those aspects of the matter that are the subject of challenge. 

3. Nonetheless, the Tribunal noted, at paragraphs 22-26, CB175-176:

   “22.  The applicant’s claims can be summarised as follows.  He is a Hindu Tamil born in 1992 in Thevipuram, Mullaitvu Northern Province Sri Lanka.  He is not married but has a mother and three older sisters.  His father was killed in a bomb blast in 2009.  He completed Year 10 and has worked as fisherman and machine operator.  From 1997, he lived in Thevipuram Village, Mullaituvu, apart from 2009-11 where he resided in Anatha Kumara Samy Camp, Vavuniya in Northern Province after being taken there by the army.  He left Sri Lanka illegally by boat in May 2012.

   23.  In the camp, the applicant was tortured, threatened and questioned by the army as to whether he was a member of the LTTE and as to whom other members were.  He was threatened he would be killed like his father. … After he was released from the camp in 2011 he returned to his village.  When he went to collect firewood for his family in November 2011 he was stopped by the army and pushed to the ground and hit with a rifle just because he was a Tamil.  He is still in pain in his left leg and getting medical treatment.  After this he did not go out much because of a fear of the army.

   24.  Two weeks before coming to Australia, the applicant was stopped by a CID officer on his way to the beach by bicycle to prepare for fishing the next day.  He was told he should come to town for a meeting with a Minister called Namal Rajapaksa who was visiting the town the next day.  He was also told that a bus would be at his village to pick up all the boys.  The applicant told him that he could not go there because he would be prawn farming.  He was threatened he would be shot if he did not come to the meeting.  A red mark was put on the backside of his photo.  The applicant was scared because he knew that some people who had the red mark went missing.  He was also scared because they only asked for young boys to attend.

   25.  The applicant went to his sister’s house in Mullaitivu and was told by his mother that the CID came to his house to look for him.  He fears that the CID will be looking for him and that he will be persecuted because he left the country illegally.

   26.  The agent’s submission referred to country information concerning the situation for Tamils and failed asylum seekers from western countries.  It asserted that he had a well-founded fear for reasons of being a Tamil, his actual/imputed political opinion, his membership of particular social groups defined as “Sri Lankan Tamils”, “Tamils from the North and East of Sri Lanka” and “Tamils who have fled Sri Lanka illegally and who are failed asylum seekers”.”

4. The Tribunal recorded the events of the hearing at paragraphs 27-36 CB176-179.  Inter alia the Tribunal traversed with the applicant concerns that the ready issue of his passport in April 2012 might indicate a lack of interest on the part of the authorities in him.  The Tribunal also noted that the applicant said, for the first time, that his father had been with the LTTE but had not mentioned it earlier as he thought it might lead to trouble for him (paragraph 28, CB177). 

5. The Tribunal put to the applicant doubts as to whether the CID had spoken to him two weeks before he came to Australia.  The Tribunal commented that it doubted that if the applicant was suspected of being party to the LTTE they would invite him to a meeting with a Minister (paragraph 29).  The Tribunal also put to the applicant doubts arising from his failure to mention being stopped by a CID officer in May 2012 and ordered to attend a meeting the next day and that the CID came to the house to look for him until the Tribunal hearing. (CB178, paragraph 33). 

6. The Tribunal also traversed with the applicant country information suggesting that the security situation and the Tamils had improved (paragraph 35, CB178-179). 

7. The Tribunal traversed country information in relation to the security situation and the position of failed asylum seekers and illegal departees from CB179-186 and the Tribunal’s Findings and Reasons are at CB186-190. 

8. The Tribunal accepted a number of the applicant’s claims which had been put consistently.  The Tribunal accepted that the applicant’s father was killed in a shell attack in 2009 and that the applicant’s family was forced to move to a camp in Vavuniya and that on one occasion, whilst in the camp, the applicant was forced to kneel by soldiers, interrogated about whether he was in the LTTE and who other members were. 

9. The Tribunal accepted that the applicant was assaulted on this occasion and otherwise threatened.  The Tribunal did not, however, accept that the applicant was targeted on account of his father’s association with the LTTE (paragraph 51, CB186). 

10. The Tribunal did not accept that the applicant was of any particular adverse interest to the authorities in April 2012 because he was able to successfully apply for a passport.  The Tribunal accepted the applicant had been assaulted in November 2011 while collecting firewood but that noted that after those incidents the applicant was able to work as a fisherman and travel to Colombo without harm (paragraph 52, CB186-187). 

11. The Tribunal did not accept the applicant was stopped by a CID officer in May 2012 and ordered to attend a meeting with Namal Rajapaksa.  What the Tribunal said, at paragraphs 53-54 (CB187) was:

    “53.  … I do not accept that he was threatened that he would be shot or a red mark was put on a photo of him.  I do not accept that when he failed to attend the CID came twice to his house to search for him.  I do so for the following reasons.  There is information that there was a school cadet graduation ceremony held on 23 May 2012 in Mullaitivu and that the ceremony was attended by a large number of cadets, senior officers, school officers, principals, teachers and parents but it does not indicate that others attended and given that a large number of parents attended this event there would not have seemed a need for the applicant to have been ordered to attend in the manner he describes.  Whilst the agent expressed doubt that the schools had cadets in the area given it was exclusively Tamil, the event happened three years after the ending of the war and no contrary information has been provided to suggest that such cadet training programmes had not been established in the region.  I accept that caution should be exercised before relying on information from a Sri Lankan government website but in the absence of contrary information find that such programmes have been established and that the cadet ceremony did take place and was attended by a large number of parents.

    54.  I further reject that the applicant was required to attend the cadet event or any meeting with the minister as he totally failed to mention this highly crucial aspect to his claims in his entry interview.  He specifically stated that nothing else happened to him when he left the camp and said that was no other reason why he left Sri Lanka.  I do not accept that the applicant would fail to mention this merely because he was not familiar with the processes and did not think seriously about it.  Whilst the agent submitted that it was only a brief interview and that he did not have a lawyer and that it would be unfair to make an adverse determination because he had not been advised of his rights this does not overcome my concerns that he would fail to mention such a highly significant claim and indeed specifically state that nothing else had happened to him and that there was no other reason why he was left.  I further do not accept the applicant’s claim that the authorities requested him to attend the event to trick him and that he was at risk of disappearance at their hands as they could clearly have detained him on the spot and they chose not to do so.  The country information (such as that from the UNHCR set out above) indicates that the authorities take a very hard line against those who they suspect to be involved in the LTTE and I do not accept that they would not take action against him because of a concern that the public would be suspicious or that it would alert small boys in the village.”

12. Essentially, the Tribunal did not accept that the applicant was a person of sufficient interest to the Sri Lankan authorities, either on account of the matters to do with his ethnicity nor on the basis that he was a failed Tamil asylum seeker. 

13. The Tribunal found that the applicant was not a person to whom Australia owes protection obligations under the Refugees Convention and went on, in what was admittedly an extremely brief passage, to conclude that the applicant was not a person who satisfied the alternative criteria in s.36(2aa) of the Migration Act.

The applicant’s grounds of application

Ground 1   The Tribunal fell into jurisdictional error by relying on country information copiously extracted from various sources without providing the applicant a copy of that information thereby denied natural justice.

1. The applicant’s written submissions, and indeed those made orally, do not follow the grounds of application in a particularly structured way as far as I can see.  The applicant’s written submissions touch upon this matter at paragraph 7.  Relevantly the submission states:

   “The Country information relied by the Tribunal was not given to the applicant for comments and thereby it breached sections 420 & 422B of the Migration Act.”

2. The written submissions go on to extract certain parts of the country information referred to by the Tribunal. 

3. Although the first respondent’s written submissions put these matters in a different order, I think that in substance the first respondent is correct to submit that (paragraph 22):

   “… it is clear from the Tribunal’s decision record that it did discuss the country information before it with the applicant during the Tribunal hearings: CB 177, pars 29-30; CB 178, par 35.”

4. The natural justice regime is, of course, limited to that set out in the statute itself and I see nothing in the way the Tribunal went about the matter that would infract that regime (see transcript p.18-19). Furthermore, there was, as the first respondent correctly submits, no obligation on the Tribunal pursuant to s.424A(1) to put to the applicant for comment the country information on which it relied as such information is specifically excluded from the definition of information by s.424A(3)(a).

5. In my view these submissions are irresistible and ground 1 cannot succeed.

Ground 2   The Tribunal fell into jurisdictional error by saying that the applicant did not provide country information to establish his claim.  Please refer to paragraph 53 of the RRT decision.  

1. The written submissions of the applicant (paragraph 8) relevantly states:

   “… It is certainly not correct for the Tribunal to state that “in the absence of contrary information” as it is not a case of proof beyond reasonable doubt.  The Tribunal has not understood and did not ask the appropriate question and failed to comprehend that the CID ordered to attend the applicant and many other people as the meeting was attended by Namla Rajapakse who is the son of the President.  The applicant further contends that the evidence about this “cadet event” was tainted evidence extracted from the government website and in the absence of contrary evidence is no evidence in law.”

2. The oral submissions did not, in my view, substantially advance the written submission filed. 

3. I have already set out the relevant extract from the Tribunal’s decision above.  It should be noted that the Tribunal was cautious in approaching the information about the cadet event which it accepted came from a Sri Lankan government website. 

4. In my view, the Tribunal’s process of reasoning was unexceptionable.  The Tribunal referred to country information available to it which, as it happened, was the only country information relating to cadet events in this region.  The Tribunal’s conclusion that the applicant had not put forward any country information of his own to countervail the material before it was clearly correct.  In my opinion, the Tribunal did not fall into error in relying upon this information in the circumstances described. 

Ground 3   The Tribunal fell into jurisdictional error by highlighting “the cadet event” which is not crucial aspect to his claim without explaining why the tribunal treated it as a crucial aspect of his claim.  Please refer to paragraph 54 of the RRT decision.

1. The applicant’s written submissions at paragraph 9 commence relevantly:

   “The Tribunal says that the applicant failed to mention this highly crucial aspect of his claim without first examining what the alleged meeting with the politician was all about, secondly the country information and thirdly and importantly the Tribunal has failed to look at the overall claims in that he is a young Tamil from formerly LTTE controlled area, suspected of LTTE involvement and his father was killed in 2009.”

2. The written submissions then go on to point to the fact that the applicant had told the Tribunal his explanation as to why this aspect of his claims had not been articulated at an earlier point.  The submissions, having referred to what passed at the Tribunal hearing itself, conclude:

   “It is therefore, given the circumstances surrounding his boat arrival and his profile it is unfair to cast doubt and crucify the applicant for not disclosing this so called “highly crucial aspect” of his evidence failing to take into account the circumstances and the constrained the applicant faced at the time of the entry interview.”

3. Unfortunately for the applicant, I accept the written submission of the first respondent that “this ground again appears to take issue with the Tribunal’s reliance on country information about the cadet event and cannot be sustained”. 

4. It is also clear from the transcript of the Tribunal hearing that the Tribunal did discuss this country information with the applicant during the Tribunal hearing, (see transcript pages 13-14). 

5. In my opinion, the Tribunal was entitled to form the conclusion that the cadet event and the alleged involvement of the CID was indeed a crucial aspect of the applicant’s claims.  The reality is that it was this, according to the applicant, that immediately compelled him to leave Sri Lanka only two weeks later.  While minds could necessarily differ as to the circumstances in which the applicant found himself upon arrival in Australia after a dangerous journey and being of only a young age, the fact is that it was clearly open to the Tribunal to find that this was a critical aspect of the applicant’s claims and his failure to mention it earlier was one to which the Tribunal was perfectly entitled to give the weight that it did. 

Ground 4   The Tribunal has not considered the integer of his claim in that he is a young Tamil male from the formerly LTTE-controlled area and suspected of LTTE involvement.

1. The applicant’s written submissions at paragraph 10 appear to roll in submissions about grounds 4, 5 and 6.  There is nothing in paragraph 10 of the written submissions, nor in the applicant’s oral submissions, that provides any particular clarity to what the Tribunal is said to have done wrong in this regard. 

2. Again, I accept the force of the first respondent’s submission.  The Tribunal was well aware that the applicant was a young male Tamil from the formerly LTTE-controlled area and that he had been questioned about possible LTTE involvement.  The Tribunal expressly considered this assertion and concluded that this was not the case.  This was partly because the Tribunal did not accept that the applicant was a person suspected of LTTE involvement by the Sri Lankan authorities and partly because of the improved security situation for Tamils in Sri Lanka and partly, obviously, because it rejected, on the basis of country information, concerns that the applicant faced risks of harm upon his return as a failed asylum seeker and/or illegal departee.  These were findings of fact clearly open to the Tribunal in the circumstances. 

Ground 5   The Tribunal fell into jurisdictional error by not assessing the applicant’s claim against the complementary protection regime.

1. While the section dealing with the complementary protection regime at CB190 is extremely short and paragraph 64 is a bare conclusion that the applicant does not meet the criteria, the fact is, as the first respondent submits, that the Tribunal assessed the applicant against the complementary protection regime, as it were, as it went through its reasons for judgment.  The Tribunal expressly considered each of the applicant’s claims against the complementary protection criterion (see paragraphs 55, 57 and 60 CB188-189) and found that he did not, in fact, meet it. 

2. In these circumstances, the Tribunal did not fall into jurisdictional error. 

Ground 6   The Tribunal has not made out its case that the applicant will not be denied a livelihood of any kind that threatens the applicant’s capacity to subsist or otherwise subjected to serious harm.

1. The applicant’s written submissions at paragraph 10 assert:

   “… The applicant contends given his profile as a young Tamil boy from the LTTE controlled area and suspected of involvement of him and his father with LTTE etc., the applicant would not be denied a livelihood was not supported by the evidence.  In contrast there is evidence that the applicant was again physically mistreated by the soldiers in November 2011. … It is an over simplification to suggest that the applicant was able to be gainfully employed as a fisherman. … when he only worked intermittently as a fisherman for less than a year whilst still being a teenager before fleeing to Australia by boat.”

2. As the first respondent’s written submissions point out, “this ground seeks to reverse the onus onto the Tribunal to make out the applicant’s case and is plainly misconceived”, (paragraph 30). 

3. The Tribunal found that the applicant would not be denied a livelihood as he was educated and had previously been gainfully employed as a fisherman (paragraph 57, CB188).  As the first respondent submits, those were factual findings open to the Tribunal and do not disclose jurisdictional error. 

The complaint advanced at the hearing

1. At the hearing before the Court, the applicant’s counsel made a number of submissions which plainly encompassed merits review.  Additionally, however, counsel did refer on one occasion to the proposition that the Tribunal hearing had been unfair and had involved, inter alia, telling the interpreter to answer “yes” or “no”.  I infer, although the matter was not stated in terms, that it was asserted that the Tribunal had bullied the interpreter and/or the applicant in the style in which the interview was conducted.  I have read the transcript and, out of an abundance of caution, I have also listened to the audio tape of the hearing. 

2. It suffices to say that while the Tribunal member clearly was not accepting everything the applicant said (and various doubts expressed by the Tribunal and put to the applicant are fairly recorded in the Tribunal’s decision), this is not a case in which the hearing was unfair. The applicant was not deprived of the hearing to which the Migration Act entitled him. It follows that this ground must also be dismissed.

Conclusion

1. None of the applicant’s grounds of review have succeeded and it follows that the application must be dismissed with costs. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Burchardt. 

Associate: 

Date:  13 February 2014