MZZIB v Minister for Immigration

[2014] FCCA 756

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZIB v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 756

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

Cases cited:
MZZIA v Minister for Immigration & Anor [2014] FCCA 717

Applicant: MZZIB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 322 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: Asylum Seeker Resource Centre

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

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

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7646.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 322 of 2013

MZZIB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant in this matter seeks judicial review of a decision by the Refugee Review Tribunal dated 18 February 2013.

2. The Applicant claims to be a citizen of Sri Lanka born in 1985 and arrived in Australia on 11 February 2012 as an “undocumented irregular maritime arrival”. In his application for a Protection Visa dated 2 July 2012, the Applicant states he is an unmarried Tamil Christian. He left Sri Lanka on 26 March 2011 and arrived in Australia via Indonesia.

3. The Applicant “claims he left Sri Lanka because he feared persecution as he had been imputed with an adverse political opinion on account of his race and his work in IDP camps…”.

4. This matter was heard at the same time as MZZIA v Minister for Immigration & Anor [2014] FCCA 717, and the arguments raised in it were identical, save for the arguments relating to the Applicant in MZZIA being a child and the operation of the Convention with respect to children. I rely upon my reasons as set out in MZZIA with respect to the law and the framework of analysis that must be applied to decisions of this type.

5. Turning to the specific findings of the tribunal in this case they appear at paras.112 to 117 dealing with the complimentary protection provisions. The findings in para.112 are based upon the factual findings set out in para.103 with respect to the Convention claims. Importantly the Tribunal at para.112 set out that there was not a real chance that the Applicant would suffer serious harm “for any reason” relating to any past work for the ICRC as the basis for refusing the complimentary protection claim.

6. At paras.113 to 115 the Applicant relied upon the possibility of an adverse political opinion being imputed to him as being a supporter of the LTTE for a variety of reasons. The Tribunal concluded that there was no real chance that this would happen and dealt with these issues in detail at paras.105 to 106 of their decision.

7. At para.116 of their decision the Tribunal dealt with the Applicant’s claim to fear harm as a potential return to asylum seeker from the west which was again dealt with at paras.100 and 107 to 109 of the decision, where the claim was rejected on a factual basis.

8. At para.117 the Applicant claimed to fear harm because of a particular conversation with a particular person in 2012. This was dealt with at para.103 of the reasons including the Tribunal’s finding that there was no credible evidence that the conversation had been intercepted by security forces and that even if the person had gone missing there was no evidence to link that event to the Applicant and that therefore the chance of him suffering serious harm because of his conversation with that person was “remote and far-fetched”.

9. As I found in MZZIA:

   [31] 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.

   [32] 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.

   [33] 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”.

   [34] 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.

   [35] 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.

   These reasons apply equally in this case.

10. In the circumstances I would therefore dismiss this application for same reasons that I provided in the decision in MZZIA.  That is, it appears that the Tribunal’s findings on the facts were able to be relied upon when applying the test in s.36 and that, as a result of those factual findings, the Applicant could not succeed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 16 April 2014