MZZHM v Minister for Immigration and Border Protection
[2014] FCA 553
•23 May 2014
FEDERAL COURT OF AUSTRALIA
MZZHM v Minister for Immigration and Border Protection [2014] FCA 553
Citation: MZZHM v Minister for Immigration and Border Protection [2014] FCA 553 Appeal from: MZZHM v Minister for Immigration & Anor [2014] FCCA 143 Parties: MZZHM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: VID 145 of 2014 Judge: BROMBERG J Date of judgment: 23 May 2014 Catchwords: MIGRATION – appeal from dismissal of application for judicial review – whether Federal Circuit Court failed to identify jurisdictional error in decision of Refugee Review Tribunal – whether information originating from a government website of the country of origin of the applicant was information upon which the Tribunal was entitled to rely – no jurisdictional error found – appeal dismissed. Legislation: Migration Act 1958 (Cth) s 36 Cases cited: MZZHM v Minister for Immigration & Anor [2014] FCCA 143
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10Date of hearing: 23 May 2014 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 13 Solicitor for the Appellant: Mr TA Fernandez of Mano Associates Solicitor for the First Respondent: Mr M Palfrey of Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 145 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZHM
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
23 MAY 2014
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 145 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MZZHM
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE:
23 MAY 2014
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an appeal from the judgment of the Federal Circuit Court of Australia, published as MZZHM v Minister for Immigration & Anor [2014] FCCA 143. The appellant is a 21 year old Sri Lankan asylum seeker of Tamil ethnicity, who arrived in Australia by boat on 5 June 2012. On 12 September 2012, the appellant applied for a Protection (Class XA) visa (visa). The determination of that application raised the central issue of whether the appellant is a person to whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) (Migration Act).
The appellant’s application for a protection visa was refused by a delegate of the first respondent (the Minister). That decision was affirmed on review by the second respondent (the Tribunal). The appellant then sought judicial review of the Tribunal’s decision by the Federal Circuit Court. It is the rejection of that application by a judge of the Federal Circuit Court (the primary judge) which is the subject of the appeal.
By reference to the grounds asserted by the appellant, the task of the primary judge was to consider whether the decision of the Tribunal was tainted by jurisdictional error. Such a finding would involve the primary judge being satisfied that the statutory task required of the Tribunal by the Migration Act miscarried. My task on this appeal is to determine whether, by reference to the ground relied upon by the appellant, the primary judge should have but failed to identify jurisdictional error in the decision of the Tribunal.
There is only one ground pressed by the appellant in contending that the Tribunal’s decision was affected by jurisdictional error. That ground is relevant to only one of the various claims the appellant made for contending that he had a well-founded fear of persecution should he be returned to Sri Lanka. That particular claim is described in the Tribunal’s reasons for decision, as follows:
[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.
The Tribunal rejected that claim because it did not believe the appellant. The Tribunal gave its reasons for not believing the appellant in relation to that claim as follows:
[53]I do not accept that the applicant was stopped by a CID officer in May 2012 and ordered to attend a meeting with a politician called Namal Rajakpakse (who is the son of the President). 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 have 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.
[54I 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.
The appellant challenged the reliance placed by the Tribunal on the information obtained from the Sri Lankan Government website (the graduation article) referred to at [53] of the Tribunal’s decision. The ground before the primary judge asserted that the graduation article was:
Tainted evidence extracted from the government website and in the absence of contrary evidence is no evidence in law.
The primary judge rejected that challenge at [32]-[35] of his Honour’s reasons for judgment. The primary judge held that reliance upon the graduation article, in the absence of any countervailing material put forward by the appellant, did not constitute jurisdictional error.
On appeal, the appellant contended that the graduation article was not independent country information and that reliance by the Tribunal on such information amounted to jurisdictional error. The appellant further contended that there was no evidence to indicate that the Tribunal was cautious in accepting the information in the graduation article. In that respect, the appellant contended that the exercise of caution should have resulted in the Tribunal not relying at all on that information.
I reject the appellant’s contention that information originating from the country of origin of an asylum seeker is not information upon which the Tribunal is entitled to rely. The choice and assessment of country information is a factual matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[12].
There may be circumstances where information relied upon by a decision-maker is so inherently unreliable that reliance upon it may point to jurisdictional error, but those occasions are likely to be rare. This is not such an occasion. Simply because the information was sourced by the Tribunal from the Sri Lankan Government website does not establish that the information was unreliable. More pertinently, that fact does not establish that the statutory task required of the Tribunal miscarried, so as to establish jurisdictional error.
Although I regard the challenge made to the contents of [53] of the Tribunal’s reasons to be misconceived, I can well understand why the appellant feels aggrieved by the contents of that paragraph. The reasoning engaged in by the Tribunal at [53] is highly speculative. In my view, the Tribunal’s credibility conclusion lacks a probative and rational foundation. For instance, there is no logical and probative connection between the fact that parents attended the graduation event and the conclusion of the Tribunal that the authorities would not have ordered the appellant to attend.
If the information from the graduation article had been the only basis for the Tribunal’s disbelief of the appellant’s claim, the Tribunal’s decision may well have been infected by jurisdictional error. However, it seems clear from the contents of [54] of the Tribunal’s reasons that there was an alternative and rational basis upon which it was open for the Tribunal to disbelieve the appellant’s claim.
It follows that the appellant has not established appealable error and that the appeal must be rejected with costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 28 May 2014
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