MZZKQ v Minister for Immigration

[2013] FCCA 1634

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZKQ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1634

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) Subclass 866 visa – Applicant’s oral adjournment application dismissed – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2A), 36(2)(a), 36(2)(aa), 91R(1)
Federal Circuit Court Rules 2001 (Cth), r.44.12

1951 Convention Relating to the Status of Refugees

1967 Protocol Relating to the Status of Refugees

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
SZRMF v Minister for Immigration and Citizenship [2013] FMCA 180
SZRNX v Minister for Immigration and Anor [2012] FMCA 1242

Applicant: MZZKQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 631 of 2013

Judgment of: Judge Hartnett

Hearing date: 15 October 2013

Delivered at: Melbourne

Delivered on: 1 November 2013

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore Lawyers

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to ‘Minister for Immigration and Border Protection’.

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 631 of 2013

MZZKQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an Application filed 9 May 2013, and amended by the Applicant on 16 July 2013, seeking judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 10 April 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) dated 24 April 2012 to refuse to grant a Protection (Class XA) Subclass 866 visa to the Applicant. 

2. The ground of application in the Amended Application filed 16 July 2013 is as follows:-

   “The Second Respondent erred in its consideration of Australia’s complementary protection obligations to the applicant in that it failed to consider and apply the criteria in s 36(2)(aa) in accordance with law” 

3. The Court notes that that is a single unparticularised ground of review which is really meaningless in the absence of particulars.  No elaboration of this ground was provided by the Applicant in oral submissions on the hearing of the matter. The Applicant was a litigant in person.  The solicitors, who had acted for him and filed the Amended Application on 16 July 2013, filed a Notice of Intention to Withdraw as Lawyer on 7 October 2013. 

4. This matter was set down for hearing originally on a date in November this year, but by Notice of Listing sent out to the parties from the Court on 28 August 2013, the parties were advised of the refixing of the hearing date to this date, being 15 October 2013.  Each of the parties had almost seven weeks’ notice of this altered hearing date. 

5. At the commencement of the hearing, the Applicant sought that there be an adjournment of the proceedings.  The basis on which he sought an adjournment was his claim that his barrister was not available to represent him that day. The Court referred the Applicant to correspondence received on 30 September 2013 from his lawyers who were acting on his behalf at that time.  That correspondence noted that the case was initially fixed for hearing on 19 November 2013, but that it had however been refixed for 15 October 2013.  That letter confirmed receipt of the letter dated 28 August 2013 from the Court to the parties, notifying them of the refixing of the hearing date.  The solicitor then acting on behalf of the Applicant sought a relisting of the matter to the original date or beyond on the basis, as set out in correspondence to the Court dated 30 September 2013, that:-

   “… Our client finds it very difficult to make arrangements to find a suitable barrister for this date and his personal circumstances also forced him unable to proceed with this date.…”

6. In response from the Court, the parties were each advised that the hearing date of 15 October 2013 remained fixed. 

7. The Applicant said in submissions at the hearing that his financial position did not require him to make application for an adjournment.  Rather, it was that he did not have a barrister available to him.  When asked by the Court could he please nominate the name or names of barristers that he had contacted, or who were acting for him in the proceedings, and were familiar with his case, he was unable to provide any such evidence. 

8. Counsel for the First Respondent opposed the granting of an adjournment, submitting that when the Applicant first raised the issue with the First Respondent some time ago, the next possible listing date was in March 2014.  The solicitors of the First Respondent were instructed to retain the earlier date for the listing of this matter.  They opposed the granting of an adjournment and submitted the ground put forward by the Applicant to be an inadequate one. 

9. The Court determined that the Applicant’s oral application for an adjournment be denied, and that his suggestion that he could not find a barrister to appear for him was not a proper basis to adjourn the hearing.  The Applicant had in fact engaged no particular barrister, and had merely rung a legal firm shortly prior to the hearing date.  The Applicant filed his original Application on 9 May 2013. A period of some five months has now passed.  He has had almost seven weeks’ notice of this hearing date.  Whilst still having solicitors act for him, he failed to file and serve written submissions in accordance with the Orders of Registrar Caporale made 22 July 2013. 

10. Counsel for the First Respondent seeks dismissal with costs, of the Applicant’s application.  The First Respondent relies on a Response filed by him on 20 May 2013, wherein he relies upon the following grounds and particulars in defence of the application: -

    a)The application for judicial review does not provide any particulars or any legal ground of review.

    b)The application invites the Court to undertake a review of the merits of the Tribunal’s decision.  To engage in fact finding about the merits of the Applicant’s case is no part of the function of the Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at paragraph 272 and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10).

    c)The application for judicial review does not establish any jurisdictional error in the decision of the Tribunal dated 10 April 2013. 

    d)The application for judicial review does not raise an arguable case for the relief claimed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) and, accordingly, the application should be dismissed.

11. The First Respondent relies upon the evidence as contained in the Court Book filed in the proceedings on 13 June 2013 and the First Respondent’s Outline of Submissions filed 8 October 2013. 

History

1. The Applicant is a citizen of Sri Lanka, of Singhalese ethnicity.  He arrived in Australia on a Student (Temporary) (Class TU) Subclass 573 visa in October 2007.  That visa was cancelled in September 2010.  He then remained in Australia until his application for a Protection (Class XA) Subclass 866 visa (‘protection visa’) on 26 March 2012. 

2. In his protection visa application, and before the delegate, the Applicant claimed that he had never been harmed in Sri Lanka and had come to Australia to study, but that he feared returning to Sri Lanka because his family were United National Party (‘UNP’) supporters and had been threatened by the current government. 

3. On 24 April 2012, the delegate refused to grant the Applicant a protection visa.  The Applicant then made application to the Tribunal for review of the delegate’s decision on 21 May 2012.  The Applicant was invited to appear before the Tribunal to give evidence and present arguments on 28 November 2012.  The Applicant’s registered migration agent made application for a postponement of that hearing and the Tribunal rescheduled the hearing date to 9 January 2013. 

4. Following that hearing and on 8 March 2013, the Tribunal sent to the Applicant an invitation to comment on, or respond to information. By letter dated 11 April 2013, the Tribunal provided notification of its decision to the Applicant.  A copy of the Tribunal’s Statement of Decision and Reasons dated 10 April 2013 (‘the Decision Record’) was enclosed in that correspondence. 

The Tribunal Hearing

1. The Applicant appeared before the Tribunal on 9 January 2013 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages although, for the majority of the hearing, the Applicant communicated in English.  The Tribunal found the Applicant to be a citizen of Sri Lanka.

Applicant’s Claims

1. In his protection visa application, the Applicant said that he left Sri Lanka for his studies however, for the past few years, his family had faced a difficult situation due to the political threats from the current government to opposition party members, which affected his family’s business and personal life. 

2. The Applicant said that he had never experienced harm in Sri Lanka.  He feared however that if he returned to Sri Lanka, he could be kidnapped, abducted, tortured, illegally imprisoned or sentenced to a term of imprisonment.  He believed that the government supported groups would kidnap him and set a ransom.  The authorities would not be able to protect him because they were biased and not fair.  The Applicant indicated to the Tribunal that he would subsequently submit a comprehensive statement.  No comprehensive statement was provided by the Applicant. 

3. The Applicant significantly expanded on his initial claims when before the Tribunal.  He claimed that both he and his father were political activists for the UNP.  In 2007, the Applicant was promoted to Secretary of the Youth Front, which raised his profile with the People’s Alliance (‘PA’).  As a result, he was targeted for verbal and physical harassment, and so he fled to Australia.  The Applicant’s father was also targeted because he worked for Sarath Foneska, and in 2012, a false case was brought against him. 

4. The Applicant also claimed that his brother and father were assaulted in 2011, and that his mother was poisoned in 2009 by political opponents.  The Applicant feared further harm from his political opponents on his return to Sri Lanka.  He also claimed to fear harm as a failed asylum seeker. 

Tribunal findings

1. The Tribunal rejected a number of the Applicant’s claim on the basis of the adverse credibility findings it made against the Applicant.  The Tribunal found the Applicant lacked knowledge about UNP politics, political events and found that his evidence about his own involvement in politics was “vague and general in nature”.

2. The Tribunal had regard to the various pieces of documentary evidence submitted by the Applicant to it but afforded them no weight on account of inconsistencies in their content with the Applicant’s claim, and on account of independent country information on the prevalence of document fraud in Sri Lanka.  The Tribunal also found that the court documents the Applicant submitted in relation to the case against his father in Sri Lanka, indicated that he had pleaded guilty and was fined, which was inconsistent with his claim before the delegate that the charges were dismissed.  On account of its numerous credibility concerns the Tribunal found the Applicant had “exaggerated and fabricated his claims to the Tribunal” and found his claims before the delegate “more accurately reflected his situation in Sri Lanka”.

3. The Outline of Submissions filed 8 October 2013 by the First Respondent accurately set out a summary of the decision of the Tribunal.  Those submissions noted the following:-

   a)The Tribunal accepted a number of the claims the Applicant made before the delegate, essentially on the basis of documentary evidence that the Applicant submitted. It accepted that the Applicant’s father had been involved in UNP politics since the 1970s, had a relationship with Foneska and had been subject to threats at election times. It did not accept, however, that the Applicant’s father had been continuously threatened or that he had suffered serious harm within the meaning of s.91R(1) of the Migration Act 1958 (Cth) (‘the Act’) on account of the Applicant’s evidence that he still operated a number of businesses in Sri Lanka and lived at the same address. Similarly, when the Tribunal accepted that the Applicant had assisted his father during the 2004 and 2005 elections, it did not accept that any threats he may have received amounted to serious harm;

   b)The Tribunal accepted that the Applicant was a UNP member in 2003 and 2012 on account of the membership card he had submitted, but did not accept that he had been the target of verbal or physical harassment.  Nor did the Tribunal accept that the Applicant’s brother or father had been physically harmed as a result of their political activities or that the Applicant’s brother had been sent to the United States of America by his father to avoid harm.  The Tribunal did not accept that the Applicant was a youth leader or secretary of the UNP, had launched a campaign or met with Members of Parliament in relation to post-election violence.  The Tribunal also did not accept that the Applicant’s mother had been poisoned.  It found it was clear she was suffering from cancer and the Applicant’s claims surrounding the alleged poisoning were “vague” and “baseless conjecture”;

   c)The Tribunal had regard to the Applicant’s delay in applying for protection and found that he did not apply for protection earlier because he had no subjective fear of returning to Sri Lanka.  It had regard to the Affidavit dated 20 November 2012 of the Applicant’s father, but found it contradicted the Applicant’s statement that he did not fear harm in Sri Lanka until sometime after his visa was cancelled;

   d)The Tribunal found that the chance that the Applicant would be seriously harmed on his return to Sri Lanka or on account of his, or his father’s political activities and relationship with Foneska was remote.  The Tribunal based this finding on the fact that neither the Applicant nor his father had been seriously harmed in the past for these reasons, and independent country information indicated that low level supporters were not being targeted.  The Tribunal did not accept that the Applicant would be kidnapped and held for ransom, abducted, tortured, illegally imprisoned or sentenced to imprisonment, and it did not accept that the Applicant faced a real chance of persecution in the reasonably foreseeable future on account of his or his father’s political activities or relationship with Foneska;

   e)Nor did the Tribunal accept that the Applicant would face serious harm on his return to Sri Lanka as a failed asylum seeker.  The Tribunal found that the Applicant had left Sri Lanka legally on a passport in his own name to come to Australia to study and so the authorities would not know he had applied for protection.  The Tribunal also had regard to the independent country information and found that even if the authorities became aware that he had applied for protection, he did not fall within any of the risk categories identified.  Accordingly, the Tribunal did not accept that the Applicant faced a real chance of persecution in the reasonably foreseeable future as a failed asylum seeker.  Even considering the Applicant’s claims cumulatively, the Tribunal was not satisfied that the Applicant faced a real chance of persecution on his return to Sri Lanka and it was not satisfied that the Applicant was owed protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugee Convention’);

   f)Although the Tribunal accepted that the Applicant may be subjected to threats and harassment as a result of his future political activities, it did not accept that these actions would amount to cruel or inhumane treatment or punishment, or degrading treatment or punishment or other significant harm as defined in ss.5 and s.36(2A) of the Act. Nor did the Tribunal accept that there was a real risk that the Applicant would be subject to significant harm as a failed asylum seeker for the same reasons that it rejected that he would face a real chance of serious harm for this reason under the Refugee Convention. Accordingly, the Tribunal was not satisfied that the Applicant met the complementary protection criteria.

Consideration

1. The Tribunal was not required to accept the Applicant’s claims at face value and the weight to be given to his claims in evidence was a matter for the Tribunal as part of its fact finding function. Its adverse credibility findings were findings of fact, open to the Tribunal on the evidence before it.

2. Complementary protection is protection given to persons who are likely to suffer persecution should they be returned to their country of origin for reasons which do not fall within the Refugee Convention definitions. The Tribunal accurately set out under the heading “Relevant Law” the correct complementary protection criterion. The Tribunal’s reasons reveal that it understood the relevant application of the particular and different requirements of s.36(2)(a) and s.36(2)(aa) of the Act. The claims made by the Applicant were found by the Tribunal to be claims which did arise under the Refugee Convention. The Applicant did not make any claims for complementary protection additional to those claims to fear harm under the Refugee Convention. Having considered the Applicant’s claims under the Refugee Convention the Tribunal comprehensively rejected that the Applicant faced a real chance of persecution on his return to Sri Lanka for any reason he advanced, even when it considered those claims cumulatively. The Tribunal also considered whether there was a real risk the Applicant would face significant harm on his return to Sri Lanka on account of his future political activities and found that he would not. Nor did it accept that the Applicant would face significant harm as a failed asylum seeker. The Tribunal concluded after considering the alternative criterion in s.36(2)(aa) of the Act that it was not satisfied the Applicant was a person in respect of whom Australia owed complementary protection obligations. I accept the submissions of Counsel for the First Respondent in this regard.

3. Whilst the Tribunal’s specific findings on complementary protection are relatively brief, brevity of itself is not indicative of jurisdictional error (SZRNX v Minister for Immigration and Anor [2012] FMCA 1242 at paragraph 15 and SZRMF v Minister for Immigration and Citizenship [2013] FMCA 180 at paragraphs 13 to 14). The Tribunal comprehensively rejected the Applicant’s claims under the Refugee Convention and there was really nothing left for the Tribunal to consider beyond what it had considered under the regime of complementary protection, save to give due consideration to that alternative criterion, which I find it did (SZRMF v Minister for Immigration and Citizenship [2013] FMCA 180 at paragraphs 12 to 14).

4. No jurisdictional error attends the Tribunal’s decision.  The application should accordingly be dismissed with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  1 November 2013