MZZIA v MIBP

[2014] FCCA 717

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZIA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 717

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – protection visa application – judicial review – minor – application dismissed.

Legislation:  
Migration Act 1958 (Cth), ss.5, 36(2)(a) and (aa), 91R
Convention on the Rights of the Child, Art.3
Family Law Act 1975 (Cth)

SZSFK v Minister for Immigration & Anor [2013] FCCA 7
Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365; [2004] FLC 93-174; 206 ALR 130; (2004) 78 ALJR 737; (2004) 31 Fam LR 339; 77 ALD 640.
Minister for Immigration v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211

Applicant: MZZIA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 321 of 2013

Judgment of: Judge Riethmuller

Hearing date: 27 November 2013

Date of Last Submission: 27 November 2013

Delivered at: Melbourne

Delivered on: 16 April 2014

REPRESENTATION

Counsel for the Applicant: Mr Cadman

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The Application filed on 15 March 2013 and the Amended Application filed 26 September 2013 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 321 of 2013

MZZIA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant, MZZIA, by his litigation guardian, seeks judicial review of a decision of the Refugee Review Tribunal dated 18 February 2013.

2. The Applicant arrived in Australia on 11 February 2012 as an “undocumented marital arrival”.  The Applicant applied for a protection visa on 2 July 2012 setting out that he was born in 1999.  He left Sri Lanka on 26 March 2011 with his cousin (who is now his litigation guardian) for the journey to Australia.

3. On 22 June 2012 the Applicant was interviewed by a delegate of the Minister with respect to his protection visa application, which was determined on 8 August 2012. 

4. Following the decision of the Tribunal on 18 February 2013 the Applicant applied to the Federal Circuit Court for a review of that decision on 15 March.  Directions were given and ultimately, following an amended application filed on 26 September 2013, the matter was heard before me on 27 November 2013.

5. The Applicant applied for a protection visa on the basis that he is a refugee within the meaning of article 1 of the Refugee Convention and also pursuant to the complimentary protection criteria provided under s.36(2)(aa) of the Migration Act 1958.

6. In summary, the Applicant seeks a protection visa on the basis of his Tamil ethnicity, membership of a particular social group being a male Tamil child who lacks a male protector, a male Tamil youth born in an LTTE controlled area and potentially being a failed returned asylum seeker from the west (see para.22 of the Tribunal’s decision).

7. The Applicant appeared before the Tribunal on 2 November to give evidence, with the assistance of an interpreter, together with a paralegal from the office of his migration agent and a support person.  Submissions were made on the Applicant’s behalf, including detailed written submissions of 12 pages signed by the director of his representative’s law firm and a solicitor at the law firm, both of whom are registered migration agents.

8. Ultimately, the Tribunal rejected the Applicant’s claims for a protection visa and the detailed reasons, the reasons relevant to the protection visa claim, are set out at paras.76 to 106 of the decision. 

9. The Tribunal then turned to consider the Applicant’s claims under the complimentary protection provisions, and dismissed them for the reasons set out at paragraphs 107 to 115 of the decision, as follows:

   [107] Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative, complementary protection criterion in s.36(2)(aa).

   [108] In relation to the applicant’s claims to fear harm by being abducted or kidnapped and being sexually exploited or killed or having his organs extracted, in light of its findings that there is not a real chance he would suffer serious harm in this way, for any reason, the Tribunal considers there are no substantial grounds for believing that there is a real risk he will suffer significant harm in that way.

   [109] With regard to the possibility of the applicant being abducted by a militia group, in light of its findings that there is not a real chance he would suffer serious harm in this way, for any reason, the Tribunal considers there are no substantial grounds for believing that there is a real risk he will suffer significant harm in that way.  With regard to the possibility he might suffer harm from being suspected of having some connection with or link to the LTTE, in light of its findings that there is not a real chance he would suffer serious harm for this reason, the Tribunal considers there are no substantial grounds for believing there is a real risk he will suffer significant harm on that basis.

   [110] In relation to his claim that he would be at risk of sexual exploitation or abuse, or exploitation through some unspecified form of child labour, in light of its findings that there is not a real chance that he would suffer serious harm in these ways, for any reason, the Tribunal considers there are no substantial grounds for believing that there is a real risk he will suffer significant harm in that way.

   [111] With regard to his claim to fear harm by being denied an education, or access to an education, in light of the Tribunal’s findings that there is not a real chance that this would happen to the applicant, for any reason, the Tribunal considers there are no substantial grounds for believing that there is a real risk he will suffer significant harm in that way.

   [112] In relation to his claims to being at risk of harm because he is a Tamil youth born in an area or who had resided in an area controlled by the LTTE, in light of its findings that there is a not a real chance he would suffer serious harm in that way or for those reasons, the Tribunal considers there are no substantial grounds for believing that there is a real risk he will suffer significant harm in that way.  With regard to his claim to be at risk of harm because he is a Tamil child who lacks male protection, in light of its findings that there is not a real chance he would suffer serious harm in that way or for those reasons, the Tribunal considers there are no substantial grounds for believing that there is a real risk he will suffer significant harm in that way.

   [113] In relation to his claims to being at risk of harm because of his Tamil ethnicity, in light of its findings that there is not a real chance that this would happen to him, the Tribunal considers there are no substantial grounds for believing that there is a real risk he will suffer significant harm in that way.

   [114] In relation to the applicant’s claims to fear harm because he would be returned as a failed asylum seeker from “the west”, including that he would be imputed to have an adverse anti-GoSL political opinion, in light of its findings that there is not a real chance he would suffer harm for these reasons, the Tribunal considers there are no real grounds for believing that there is  a real risk he will suffer significant harm on that basis.  In regards to the possibility that he might suffer harm from being interviewed and questioned by the GoSL on return, in light of its finding there is not a real chance he would suffer serious harm in this way, for any reason, the Tribunal considers there are grounds for believing that there is a real risk he will suffer significant harm on that basis.  With regard to the possibility he is at risk of harm because of his association and relationship with Mr [H], in light of its findings that there is not a real chance he would suffer serious harm for that reason, the Tribunal considers there are no substantial grounds for believing that there is a real risk he will suffer significant harm in that way.

   [115] Having considered the applicant’s circumstances singularly and on a cumulative basis, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

10. There are three grounds for the Applicant’s application, which are set out in considerable detail in the amended application.  In substance there were two points that were ultimately argued:

    a)That the Tribunal had applied an incorrect test when determining the Applicant’s claims pursuant to the complimentary protection provisions (section 36(2)(aa) of the Migration Act 1958); and

    b)That the Tribunal had erred in failing to take into account or make findings with respect to the applicant’s age and status as a child and the application of the Convention on the Rights of the Child.

Complimentary Protection Provision Claims

1. In many of the paragraphs dealing with the complimentary protection claim the Tribunal adopts a form of reasoning whereby they state that, in light of [their] findings that there is not a real chance [of various events], the Tribunal considers that there are no substantial grounds for believing that there is a real risk he will suffer significant harm.

2. The Applicant argues that this form of words, as it appears in the various paragraphs (with slight variations), shows that the Tribunal failed to apply the appropriate test under s.36(2)(aa), but instead simply dismissed the complimentary protection provision claims for the same reasons that it dismissed the convention based claims, even though the convention claims and the complimentary protection claims are subject to different legal tests.

3. As discussed in some detail in the Minister for Immigration v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 (per Lander, Jessup and Gordon JJ), s.36 of the Act provides two bases for obtaining a protection visa, first, in s.36(2) by reference to the Refugees Convention, and secondly in ss.36(2)(a) and 36(2)(aa) which is commonly referred to as the complimentary protection provisions. As the Full Court explains at para.18 of its decision, the complimentary protection regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations under the Refugee Convention. Importantly, the Full Court said:

   20. It is therefore neither necessary nor useful to ask how the CAT or any of the International Law Treaties would apply to the circumstances of this case. The circumstances of this case are governed by the applicable provisions of the Act, namely ss 36(2)(aa) and 36(2B), construed in the way that has been indicated.

4. Significantly, the test to be applied with respect to Refugee Convention related matters is one of “serious harm” as defined in s.91R of the Act, whereas the test to be applied with respect to the complimentary protection regime is one of “significant harm” as defined in ss.36 and 5 of the Act.

5. What is argued is that the findings made with respect to the convention based reasons proceed on the basis of a test of “a real chance” that somebody would “suffer serious harm”.  Whereas, to the extent that the claims proceed upon the complimentary protection provisions, the test to be applied is whether or not there is “a real risk” that a person will “suffer significant harm”.

6. At the highest level of abstraction the Applicant’s argument is that the Tribunal’s reliance upon its findings with respect to the convention grounds, when going on to deal with the complimentary protection provision grounds, shows an error of law sufficient to set aside the decision.  However, such an argument conflates the reasoning process of the Tribunal and does not reflect the process adopted by the Tribunal member when one reads the decision as a whole.

7. When reading the decision as a whole it is clear that the Tribunal member made various factual findings which were the foundation of the conclusion to reject the Applicant’s claims for various convention based reasons, and which factual findings were also utilised as the basis for the rejection of the applicant’s claims for complimentary protection.  I agree with Judge Driver’s comments in SZSFK v Minister for Immigration & Anor [2013] FCCA 7 where his Honour said:

   90. The problem with this reasoning is that the Reviewer makes no attempt to distinguish the different tests posed by s.36(2)(a) and s. 36(2)(aa). This is particularly problematic in the present case, where the Reviewer has accepted claims of detention and assault, but rejected a number of the claims on the basis of the absence of a Convention nexus or for some other reason peculiar to the Convention.

8. His Honour then undertakes a careful and detailed analysis of the various points in the decision where findings of fact are made which would support a complimentary protection provision claim, in circumstances where they may not support a convention claim (see the analysis at para.91 of his decision).

9. As a result his Honour said:

   92. Given the manner in which the Reviewer approached his task (ie to accept the claimed apprehensions and beatings, but to reject the claim under s. 36(2)(a) for reasons specific to Convention claims), it was not open for the Reviewer to simply say, as he did, that the complimentary protection claim was rejected for the same reasons. It was incumbent on him to engage with the language of s. 36(2)(aa) and to consider the evidence relevant to that provision.  

10. After further analysis of the detail of the tribunal decision in that case, his Honour ultimately concluded that the error had been established.  Whilst the decision is good authority for the proposition that the tests are different and both need to be squarely considered, it is not authority for the blanket proposition that findings of fact made during the course of findings relating to convention based claims cannot be relied upon for the purpose of assessing complimentary protection based claims.  Just as his Honour was required to undertake a detailed review of the actual findings in the decision in SZSFK, I must do likewise in this case.

11. What both cases do highlight is the importance of the Tribunal in making findings of fact with respect to the particular findings in this case.

The Applicant’s Claims

Ground One

1. The first issue relates to the Applicant’s fear of harm of being abducted or kidnapped or sexually exploited or having his organs extracted.  The Tribunal concluded that there was not a real chance that he would suffer serious harm in this way for any reason, therefore finding there was not a real risk that he would suffer significant harm in this way.  This is set out at para.108 and relies upon the findings in para.90 where the Tribunal concluded that there was no credible evidence to indicate any kidnappings had occurred on more than but a few seemingly random occasions.  And importantly:

   90. …in these circumstances, it is difficult to consider that there is a real or genuine basis to be satisfied that the chance of the applicant being abducted or kidnapped is anything but remote.

2. The Tribunal also identified, at para.92, that as there was not a real chance that the Applicant would be abducted or kidnapped, so it followed that the Tribunal did not accept that there was a real chance that he would suffer serious harm, such as having his kidneys or other organs extracted or of being sexually exploited or killed as a result of being kidnapped or abducted. 

3. At para.109 the Tribunal dealt with the possibility of the Applicant being abducted by a militia group, and relied upon its findings at para.93, that:

   93. …there is no evidence before the Tribunal to support a finding that there is a real chance that the applicant would be abducted or forcibly recruited by the LTTE or some other militia group in the Northern Province if he returned now or in the reasonably foreseeable future. 

4. At para.110 the Tribunal squarely dealt with the risk of sexual exploitation or abuse or other forms of exploitation such as child labour, and again relied upon its findings in paras.90 and 92. 

5. At para.111 the Tribunal considered the claim of harm on the basis of the Applicant being denied an education or access to an education, which relied upon findings at paras.100 and 105 that free education is provided in Sri Lanka at a relatively high standard and that Sri Lanka has high literacy rates and that he would not be denied access to basic services and the capacity to earn a livelihood.

6. At para.112 the Tribunal addressed the claims relating to a risk of harm because the Applicant is a Tamil youth born in an area once controlled by the LTTE and that he is a male child who lack male protection.  Again, these issues were dealt with on a factual level at paras.94 and 98 where the Tribunal found that there was no credible evidence of Tamil children suffering serious harm in the recent past for being Tamil or being young Tamil males, nor independent evidence of any serious harm suffered by a child in the Northern Province in the recent past for one or more of these reasons, nor (at para.98) did the Tribunal find that there was credible evidence before the Tribunal to indicate or suggest that Tamil children in female-headed households with no male protection are at risk of serious harm. 

7. At para.113 the Tribunal turned to claims of risk of harm because of the Applicant’s Tamil ethnicity, which they rejected on the same basis as the detailed reasoning set out earlier at paras.95 and 97. 

8. Finally, at para.114 the Tribunal turned to consider whether the Applicant may be harmed because he would be returned to Sri Lanka as a failed asylum seeker from the west, and it relied upon its finding that there was not a real chance he would suffer serious harm in this way for any reason, such findings being detailed at paras.103 and 104.

9. The detailed reasons of the Tribunal when dealing with the convention claims were not challenged.  The Tribunal on each occasion made findings that the Applicant was not at real risk, and there was nothing that the Applicant’s counsel was able to particularise, which may indicate further facts or circumstances that would be necessary to consider in making the findings with respect to the complementary protection visa.

10. At best, counsel for the Applicant argued that, with respect to any claims of risk of harm, as being a failed asylum seeker returned to the country, the Tribunal should have regard to his age (13-year-old child) and the Convention on the Rights of Children.  To the extent that it was relevant, the Tribunal did identify and have regard to the applicant’s age, family circumstances and education, as is apparent from para.77 and the reasoning given with respect to the convention-related claims.  There is nothing in this reasoning which indicates that the factual findings made with respect to the convention application were not sufficient factual findings to found the considerations with respect to the complementary protection provisions.

11. To the extent that the different tests utilise the different form of words “real chance” and “real risk”, there is nothing that has been identified in the case put by the Applicant, nor the findings made by the Tribunal in this case, from which one could conclude that any possible difference in the nuanced meanings of those two phrases (which must very significantly overlap) could be relevant in this case.

12. Similarly, in the context of this case there was nothing particularised by the Applicant with respect to his claims or the findings of the Tribunal, or indeed the evidence of the court book, to show an arguable case that circumstances which did not amount to “serious harm” could, in the context of this case, be considered differently on the test of “significant harm”.

1. It is important to note the caveat that, whilst serious harm and significant harm are from different statutory regimes and different definitions, there is inevitably a significant overlap in the meaning on the two terms.  A simple example is the risk of being killed, which is sufficient to fulfil both.  Other types of risk are common to both, and yet other circumstances may in some cases only be covered by one or the other.  The most common distinction will be that the complementary protection provisions do not require the relevant convention nexus, however that was not an issue in this case.

2. In the circumstances I am not persuaded that the Tribunal in this case erred in its task of applying the appropriate test.  The Tribunal identified the correct test for both convention matters and complementary protection matters early in its decision.  The tribunal member made detailed findings in fact.  The tribunal member referenced those findings in fact as the foundation for findings with respect to the complementary provisions.  To the extent that there is arguably some looseness of language and utilising wording from one section with respect to the other, in the context of this particular case it is difficult to see that this shows that an inappropriate test was applied, nor that any different outcome could reasonably have been contemplated.

Ground Two

1. The second issue that was raised was the failure of the Tribunal to consider the age of the Applicant and the Convention on the Rights of Children.  The first part of this argument is easily dealt with.  There is no question that the Tribunal were acutely aware of the age of the applicant, given that they identify that in their decision (at para.77 the Tribunal identifies that the applicant is 13), and that considerable support was put in place to enable him to present his case as best he could before the Tribunal.

2. The reasoning itself identifies as a significant part of his claims that he was a child without a male protector.  It was argued that the Tribunal should have considered the potential impact upon him of being interviewed by police or military officials upon return, however nowhere was it particularised that there was any particular risk in this regard beyond the risks dealt with by the Tribunal.  To this extent the Applicant’s claim in this regard must be dismissed.

3. The applicant also claims that the tribunal erred by failing to consider the terms of the Convention on the Rights of the Child, and in particular Art.3 which provides:

   Article 3

   1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

   2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

   3. States Parties shall ensure the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

4. Counsel was unable to articulate how it is said that this provision in the Convention (which it was not argued has been expressly adopted into Australian law) would affect the operation of the relevant provisions of the Migration Act. Indeed, it is difficult to conclude that any decision to grant a protection visa would not be a decision in the best interests of a child, enabling them the option to reside in another country free from harm of the type identified in their protection visa application. To suggest that the Convention would require the Tribunal to go on to consider generally what is in the best interests of the child would be erroneous for a number of reasons, not the least of which is that it is not a provision that has been expressly adopted in the Migration Act and would effectively allow a provision of the Convention to override an express Australian legislative provision.

5. On a practical level it would also be unworkable as it would result in tribunals such as the Refugee Review Tribunal attempting to determine what is in a child’s best interests when their purpose is to determine whether or not a child ought to be entitled to a protection visa. If a child is entitled to a protection visa they will be allowed to reside in Australia and it would at that point be appropriate for any proceedings relating to the care arrangements of the child to be brought in a court of appropriate jurisdiction (either Australia or the other country), and if such proceedings were brought in Australia the Convention provisions in Art.3 would inevitably be fulfilled by the operation of the relevant provisions of the Family Law Act 1975.

6. However, the provisions of the Family Law Act do not govern the question of the entitlement of persons to visas nor how they should be dealt with as unauthorised arrivals or those seeking protection visas (see generally Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365; [2004] FLC 93-174; 206 ALR 130; (2004) 78 ALJR 737; (2004) 31 Fam LR 339; 77 ALD 640).

7. It is unfortunate that in many applications for protection visas that are coming before the courts involving persons under 18, Art.3 of the Convention on the Rights of the Child is being argued as some form of catch-all provision when it is neither “engaged” by the legal framework nor the circumstances of the cases, and serves only to obfuscate what is already a complex task in assessing the person’s need for a protection visa.

8. In the circumstances I therefore dismiss the application.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  16 April 2014