MZZHW v Minister for Immigration

[2013] FCCA 2188

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZHW v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2188

Catchwords:
MIGRATION – Refugee Review Tribunal – challenge to finding that applicant able to depart Sri Lanka legally on a passport in her own name – applicant seeking merits review.

Applicant: MZZHW

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 315 of 2013

Judgment of: Judge Riley

Hearing date: 21 November 2013

Date of Last Submission: 21 November 2013

Delivered at: Melbourne

Delivered on: 21 November 2013

REPRESENTATION

Counsel for the applicant: The applicant appeared in person

Solicitors for the applicant: The applicant was not represented

Counsel for the First Respondent: Catherine Symons

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Clayton Utz

ORDERS

1. The application filed on 14 March 2013 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6,646.

3. The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 315 of 2013

MZZHW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal.  The Tribunal affirmed a decision of the delegate refusing the applicant a protection visa. 

2. The applicant said in a statutory declaration made on 8 July 2012 that:

   a)she and her family had suffered numerous difficulties during the civil war in Sri Lanka;

   b)they had been obliged to move from one place to another;

   c)the army conducted frequent checks and round ups;

   d)her studies were disrupted;

   e)in 2010, a person in civilian clothing frequently came looking for her brother;

   f)he believed that the authorities looked for him because of something that happened to him in Colombo in 2006, and because he had returned from India after previously leaving Sri Lanka illegally;

   g)in 2009, the applicant joined a youth group;

   h)the youth group decided to put on a play;

   i)the play concerned people known as “grease devils” who subjected people to extortion;

   j)the applicant and others believed that the “grease devils” operated with the approval of the Sri Lankan army and the Sri Lankan authorities;

   k)the applicant was chosen to act in the play which hundreds of people attended;

   l)some months after the play was staged, two of the actors were severely beaten by the authorities;

   m)the applicant went to stay at her sister-in-law’s place;

   n)the Sri Lankan army came in search of her at her parent’s house; 

   o)the applicant, after a time, decided to flee Sri Lanka along with her brother;

   p)the applicant feared that if she returned to Sri Lanka she would be persecuted by the Sri Lankan army for reasons of her Tamil race, as a young Tamil girl who had lived in the Vanni area and who had come to the adverse attention of the army and the authorities by reason of her involvement in the play; and

   q)the applicant believed she would be persecuted because of what had happened to her brother as they suspected he was an LTTE member. 

3. The Tribunal conducted a hearing at which the applicant was assisted by an adviser and an interpreter.  The Tribunal accepted that the applicant was a Tamil and a Hindu.  The Tribunal found that the applicant had left Sri Lanka on a passport in her own name. 

4. The Tribunal found that the applicant was not a reliable witness.  The Tribunal considered that there were a number of issues that detracted from the plausibility of her claims and her overall credibility. 

5. The Tribunal rejected the applicant’s claim that her father had bribed an official so that she was able to leave Sri Lanka on a passport in her own name.  The Tribunal noted that the applicant had not claimed that she would suffer persecution merely as a Tamil.   The Tribunal noted that the applicant’s sisters had not, according to the applicant, suffered any harm.  The Tribunal did not accept that as a single Tamil woman the applicant would face persecution in Sri Lanka. 

6. The Tribunal accepted that the applicant had been an actor in a play about “grease devils”.  However, the Tribunal did not find the applicant’s account of what occurred after the staging of the play to be credible.  The Tribunal did not accept that the authorities had searched for the applicant, and did not accept that the applicant faced a real chance of persecution by reason of her participation in the play. 

7. The Tribunal did not accept that the applicant faced persecution by reason of her brother having possibly been suspected of being an LTTE member.  In this regard, the Tribunal noted that the applicant had not been questioned or otherwise affected in the past for this reason. 

8. The Tribunal also considered whether the applicant faced persecution as a failed returned asylum seeker from the West.  The Tribunal noted that, as the applicant had not left Sri Lanka illegally, she would not be subject to the Sri Lankan laws dealing with illegal departure. 

9. The Tribunal considered whether the applicant would face any risk as a Tamil, as a young woman, as a person who might be assumed to be an LTTE supporter because she was a failed asylum seeker.  However, based on country information, the Tribunal did not accept that the applicant faced persecution for any of those reasons. 

10. The Tribunal also considered whether the applicant might face significant harm under the complementary protection provisions.  The Tribunal concluded that the applicant would not face any such harm. 

11. The applicant filed an application in this court on 14 March 2013.  The application was filed by the applicant without the benefit of legal assistance.  The grounds set out in the application are that:

    1.The Refugee Review Tribunal did not afford me procedural fairness.

    2.     The Refugee Review Tribunal applied the wrong legal test. 

12. The affidavit filed in support of the application simply says that the Tribunal applied the wrong legal test.  No particulars were given in the application or affidavit in support. 

13. The applicant was required to file written submissions.  She did so, very late, three days before the hearing.  Her written submissions did not address the issues raised in her application.  They simply sought to challenge the merits of the Tribunal’s decision. 

14. The applicant said that the Tribunal placed weight on the fact that she was able to obtain a passport and depart Sri Lanka legally.  The applicant said in her contentions that she had said clearly in her statutory declaration that her father had paid a bribe to an agent to obtain the passport and enable her to leave the country.  That claim was made in the applicant’s third statutory declaration, which was dated 3 January 2013, and was made after the Tribunal hearing.  Previously, the applicant had not alluded to bribery. 

15. The issue of the passport was dealt with by the Tribunal, firstly, at paragraphs 49 to 51 of its reasons for decision.  Those paragraphs summarise the discussion at the Tribunal hearing regarding the passport issue, and are as follows:

    49.I said that I was puzzled as to why she thought that the authorities would still be interested in her because of a play that took place in April 2011.  The applicant said that she was searched for and they kept searching for her.  I said that it seemed they searched constantly but did not find her.  The applicant said that this was so.  I said that I was having the same difficulty that the delegate had outlined in her Decision Record about this claim.  I said that the applicant had remained in the area and had gone to school in the period in which the applicant said that the CID was searching for her on a regular basis.  I noted that in addition during that same period the applicant had obtained a Sri Lankan passport in her name.  I also noted that the applicant had then left the country through Colombo airport using that passport without any difficulty.  I said that all of that indicated to me that the applicant was not someone of interest to the Sri Lankan authorities when she left the country.

    50.The applicant said that her father had paid money to get [the] passport.  I noted that it was a passport in her name, with her photograph.  I said that I understood it was usual for people to pay someone to do the job of physically obtaining and delivering the passport.  I said that I did not understand the significance of using an agent unless the applicant was trying to imply that the passport was somehow not legal.  I asked if that was what she was implying as I had trouble accepting that it was.  The applicant said that money was paid to an agent.  I asked about her departure through the airport.  The applicant said that she had no problems at the airport but she was scared that she might.

    51.I said that I was aware that the Sri Lankan authorities, in common with many other countries, has what could be described as a ‘watchlist’ of people who are of interest to the authorities and who are coming and going out of the country.  I said that if her passport was checked at the airport and she was allowed to leave that appeared to indicate that the applicant was of no interest to the Sri Lankan authorities.  The applicant said that her problem was in the village where she lived.  She said that she was afraid of the CID.

16. The Tribunal made findings about the passport issue at paragraph 88 of its reasons, which is as follows:

    88.I note that during the course of the hearing the applicant indicated that she did not know if the passport she used to depart Sri Lanka was real or fake and that an agent may have [been] bribed to facilitate her departure.  I do not accept that using an agent means that the passport obtained is not legal.  I accept the country information about the procedures at Colombo airport.  I do not accept that an agent could have bribed an official in the way that the applicant has claimed if she was a person of interest to the Sri Lankan authorities.  I also do not accept her assertion in her Statutory Declaration on 13 January 2013, that the reason she was able to leave Sri Lanka in 2012 was because her father, and not the agent, had bribed someone at the airport to enable her to leave the country, is credible.

17. It is clear from that paragraph that the Tribunal did not accept that the alleged bribery occurred. 

18. In her written contentions, the applicant otherwise said that the Tribunal had failed to consider the issue of relocation.  It was not necessary for the Tribunal to consider that issue, in circumstances where it did not consider that the applicant faced a real chance of persecution. 

19. At the hearing before the court today, the applicant was asked to elaborate on her claims that the Tribunal had failed to afford procedural fairness, and had applied the wrong test.  The applicant did not engage with that request.  She said that there were two reasons the Tribunal had rejected her claim.  One was that she was able to leave Sri Lanka on a passport in her own name, and the other was that she had not provided sufficient evidence.  In relation to the second matter, the applicant said that she would get further evidence if she had the opportunity to have another hearing before the Tribunal.  However, the court is not able to set aside a Tribunal decision simply to enable an applicant to adduce further evidence. 

20. In relation to the passport issue, the Tribunal considered the claim that the applicant’s father had paid a bribe and rejected that claim.  It is open to the Tribunal to reject evidence given by an applicant on the grounds of credibility.  The particular matters raised by the applicant in her written submissions, and in her oral submissions today, do not indicate jurisdictional error.  The applicant has not substantiated the two matters that she raised in her application. 

21. The Tribunal set out in its reasons the relevant legal tests.  The statement of those tests was accurate and the application of those tests seems to me have been accurate as well.  In relation to procedural fairness, there does not appear to have been any relevant failure.  The Tribunal did alert the applicant to a number of issues during the course of the hearing.  The Tribunal gave the applicant’s advisor the opportunity to provide post-hearing written submissions.  The applicant provided a post-hearing statutory declaration, but no written submissions were provided.  When the due date for the written submissions had passed, the Tribunal went to the trouble of contacting the applicant’s adviser to enquire whether any written submissions would be forthcoming, and the adviser said that no such written submissions would be provided. 

22. In relation to the one issue that the applicant raised today, being the bribery of an official to enable the applicant to depart Sri Lanka legally, I note that paragraphs 49 to 51 of the Tribunal’s reasons, which are set out above, indicate that the Tribunal did, in fact, afford the applicant procedural fairness in relation to that issue.  I have read the decision of the Tribunal carefully.  I am unable to detect any other matter on which the Tribunal may have failed to afford the applicant procedural fairness.  In these circumstances, the applicant’s grounds are not made out and the application must be dismissed.

23. In accordance with usual principles, there will be an order that the applicant pay the first respondent’s costs fixed in the sum of $6,646.

24. There will also be an order that the title of the proceeding be amended so that the name of the first respondent is, “Minister for Immigration and Border Protection”.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  16 December 2013