MZZLK v Minister for Immigration

[2016] FCCA 3496

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZLK v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3496

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the decision was unreasonable and the Tribunal had failed to consider all of the applicant’s claims.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: MZZLK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 750 of 2013

Judgment of: Judge Cameron

Hearing date: 15 December 2016

Date of Last Submission: 15 December 2016

Delivered at: Sydney

Delivered on: 15 December 2016

REPRESENTATION

Counsel for the Applicant: Dr A. McBeth

Solicitors for the Applicant: JPS Legal Services

Counsel for the First Respondent: Ms N. Blake

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ of certiorari issue bringing the decision of the Refugee Review Tribunal dated 30 April 2013 into this Court to be quashed.

2. A writ of mandamus issue directing the second respondent, as successor of the Refugee Review Tribunal, to re-determine according to law the applicant’s application made to the Refugee Review Tribunal on 3 December 2012.

3. The first respondent pay the applicant’s costs fixed in the amount of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

MLG 750 of 2013

MZZLK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 11 May 2012. On 5 August 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Sri Lanka because of ethnicity. On 26 October 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings, the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error, as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection.  As summarised by the Tribunal, the applicant relevantly made the following claims in his visa application and in a statement accompanying the application:

   a)in 1989, when he was four years old, his mother was killed during a conflict with Indian forces.  He was injured during the event and sustained scarring;

   b)as a result of his scars he was subjected to close scrutiny at checkpoints.  On several occasions in 2004 he was detained at   Sri Lankan Army (“SLA”) camps for questioning but was not abused or mistreated;

   c)in December 2005 several of his friends were at a local bar where they were killed by plain clothes members of the SLA.  As a result of that incident he decided to leave Jaffna and move to Colombo;

   d)he was arrested in 2007 while living in Colombo.  The police visited his lodgings when he was not there and left a message for him to report to the police station.  When he reported to the police he was detained and interviewed on suspicion of being an associate of the Liberation Tigers of Tamil Eelam (“LTTE”); and

   e)when he was released he travelled to India on a tourist visa and on a Sri Lankan passport issued in his name.  In India he was constantly questioned by the police so he decided to travel to Australia by boat.

2. The applicant appeared before the Tribunal on 5 March 2013.  At the commencement of the hearing he provided to the Tribunal several documents headed “Sri Lanka Police” and dated in 2007, which he claimed were related to his arrest, detention and subsequent court proceedings in 2007.  The translation of one document, dated 3 May 2007, stated:

   [Officer] was on duty on 02.05.2007 at 13hrs at [named] Road and at house [number] a gang of people were gathering without any reason and they were questioned by [Officer] and came to know they are residing temporary in Colombo and their permanent residences are at Chavakachcheri and Kodikamam and they were taken into custody ... as suspects for terrorist activities and because of they were not possible to confirm their identifications.

   The other documents the applicant provided named him as one of the persons detained on 2 May 2007.

3. The applicant made the following additional claims to the Tribunal:

   a)neither he nor any members of his family had any association with the LTTE;

   b)he believed that his friends were killed in 2005 because of their Tamil ethnicity and because they had been out after curfew;

   c)when he was arrested in 2007 he was detained for one month and was released after a friend paid his bail.  Because the police spoke Sinhalese and no-one had explained anything to him he did not understand why he had been detained;

   d)in 2009, while living in India, his passport was stolen from his bag.  He was carrying it with him because at the time he had been attempting to acquire a visa to travel elsewhere.  He did not report it or seek a new passport.  He had not thought it necessary to seek a new passport because he had already been registered with the Indian authorities and had not required a passport to continue residing in India.  His Sri Lankan identification card was also stolen at the same time but he had kept a photocopy of it;

   e)he would be arrested, tortured or killed by the Sri Lankan authorities and would be treated like an animal.  There were many human rights violations in Sri Lanka;

   f)if he returned to Sri Lanka he would be questioned and the authorities would be suspicious of his activities outside Sri Lanka; and

   g)he would also face difficulties because he was a Tamil male from the north of Sri Lanka.

4. The applicant’s representative submitted to the Tribunal that because he had no passport or identification, the applicant would be likely to be detained on his return to Sri Lanka and might suffer harm.  The representative submitted that there was insufficient monitoring of returned failed asylum seekers.

5. In a post-hearing submission dated 3 April 2013, the applicant’s representatives further submitted that the applicant feared harm in Sri Lanka because of his Tamil ethnicity; his political opinion and imputed political opinion opposing the Sri Lankan government; and his membership of particular social groups characterised as “Tamils in Sri Lanka”, “young Tamil men in the East or North of Sri Lanka”, and “people suspected or accused of being members of, associating with or supporting the LTTE”.  The applicant’s representatives referred to media reports indicating that asylum seekers, particularly irregular maritime arrivals, were suspected of having associations with the LTTE.  They also referred to country information indicating that Sri Lanka had a poor human rights record.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal did not accept that the applicant did not have a valid Sri Lankan passport.  It found his evidence on how his passport had been stolen and why he had not reported its theft or sought a new passport equivocal and unconvincing.  As it did not accept that the applicant did not have a Sri Lankan passport or identification, the Tribunal also did not accept that he faced an increased likelihood of detention on his return to Sri Lanka because he lacked identification documents;

   b)the Tribunal did not accept that simply being a Tamil, a Tamil from the north or a young Tamil male from the north of Sri Lanka gave rise to a well-founded fear of persecution by the Sri Lankan authorities.  In that regard the Tribunal referred to country information which indicated that coming from a particular region or being of a particular ethnicity did not, of itself and without a particular additional profile factor, give rise to a well-founded fear of harm in Sri Lanka;

   c)the Tribunal did not accept that the applicant had been arrested in 2007.  It noted in that regard that there was a significant inconsistency between the applicant’s oral and written evidence and the documents he had provided which were purportedly from the Sri Lankan police.  In his written and oral evidence the applicant claimed that he had been arrested when he went to report to the police station whereas the documents he provided indicated that he had been arrested in a public location after he failed to produce his identity documents when requested by police.  The Tribunal did not accept the applicant’s explanation, that he did not know the details of his detention because he did not speak Sinhalese, accounted for the inconsistency.  It also found that at its hearing the applicant had been vague and not forthcoming with details of his claimed arrest and subsequent release on bail.  In those circumstances, the Tribunal was not satisfied that the applicant had been arrested or detained or released on bail.  It did not place any weight on the documents he had provided;

   d)as it did not accept that the applicant had been arrested in 2007, the Tribunal did not accept that prior to his departure from Sri Lanka he had been imputed with having links to the LTTE.  It also based its finding in this regard on the applicant’s evidence that neither he nor any member of his family had ever had any association with the LTTE;

   e)the Tribunal accepted that during the years of conflict in Sri Lankan the applicant might have been questioned at checkpoints and at SLA camps and that he had been subject to closer scrutiny because of his scarring.  However, it noted that the applicant had not claimed that anything further had followed from the questioning and had indicated that he was not mistreated or abused when questioned;

   f)the Tribunal accepted that persons known to the applicant might have been killed by the SLA in 2005 but it found that the applicant had not made any claims to have been connected or involved in that event or to have been of interest to the authorities at that time.  It noted that the applicant claimed that it was that event which led him to move to Colombo but he did not claim that he was sought after or implicated in the event.  The Tribunal therefore did not accept that the event gave rise to a well-founded fear of harm on the applicant’s part were he to return to Sri Lanka;

   g)the Tribunal did not accept that the applicant would be imputed with LTTE links because he had travelled to Australia by boat as an irregular maritime arrival.  It noted that while the applicant’s representatives had referred to media reports about the Sri Lankan authorities’ concerns that some asylum seekers had LTTE associations, numerous media reports suggested that Sri Lankan authorities thought Sri Lankan arrivals in Australia were driven by economic considerations.  The Tribunal therefore did not accept that the Sri Lankan authorities imputed all those who travelled to Australia by boat as having links with the LTTE by reason of their method of travel; and

   h)the Tribunal accepted that the applicant would return to Sri Lanka as a member of a particular social group of failed asylum seekers and that he would be questioned about his absence.  However, it did not accept that the questioning would amount to serious or significant harm.  The Tribunal noted the applicant’s claim that there were human rights violations in Sri Lanka and that he would be treated like an animal by the Sri Lankan authorities.  It also noted that a range of reports on the human rights situation in Sri Lanka existed but found that many of them focussed on the civil war and its immediate aftermath.  The Tribunal did not accept that the applicant had a profile which would lead him to face harm in Sri Lanka.

Proceedings in this Court

1. In his further amended application the applicant alleged:

   1.The Tribunal’s decision was so unreasonable or irrational that no reasonable decision maker could have made it.

   Particulars:

   a.The Tribunal’s finding that the applicant’s claim regarding the circumstances of his arrest was inconsistent with the documents from Sri Lankan police was irrational;

   b.The Tribunal’s finding that the applicant was not forthcoming on relevant details of his arrest is not supported by the evidence;

   c.The Tribunal’s consequent finding that the applicant was not arrested and detained was unreasonable.

   2.The Tribunal failed to consider a claim or integer of a claim, namely the applicant’s claim that his association with two persons who were killed in 2005 contributed to a well-founded fear of persecution based on imputed political opinion.

   3.[not pressed]

Ground 1

1. The allegation that the Tribunal’s decision was unreasonable or irrational such that no reasonable decision-maker would have made it was, in part, based on a particular reading of the documents purported to have come from the Sri Lankan police.  The applicant suggested that those documents should be read in only one way and in a way different from the Tribunal’s understanding of them.  The issue was where the applicant had been arrested in 2007.  I do not believe that no reasonable decision-maker would have read the police documents at page 151 of the court book which was exhibit 1, as saying that the applicant was arrested at his home rather than at the police station as the applicant told the Tribunal.  That is particularly so in light of the second police document at CB 152.  For that reason, I do not consider the Tribunal’s conclusion in relation to the location or circumstances of the applicant’s arrest to have been relevantly unreasonable.

2. The second material element of the particulars concerned the Tribunal’s statement that the applicant had not been forthcoming in his evidence on matters concerning that arrest.  The basis of that conclusion by the Tribunal was not clear, but I think it can be understood to reflect its dissatisfaction with the applicant’s answers to questions following the passage at page 18 of the Tribunal hearing transcript, where he spoke of the language differences which he said meant he could not understand why he had been arrested.  The Tribunal may have taken a stern view of the applicant’s responses in the passages following that particular statement, but the applicant’s answers were not all informative or informed.

Ground 2

1. In support of the second ground of the application, the applicant referred to the summary of his entry interview reproduced at CB 10:

   Since the shooting of my friend in 2005 they have been looking for me on suspicion.

   ...we used to go to the playground at [school name] playground at the school the Tigers also came to play. Because of that the army came and shot [R] on suspicion … the Tigers were using the playground and some informed that they were coming and play.

   Were you there at the time? Yes

   What happened to you? I was searched; I got scared when he was shot so I came to Colombo.

   Tell me what happened to [K] … the same problem and the same time.

   Why do you think there is a threat to your life? Because I was moving with him.

   But that was six years ago. – Yes in 2005.

   Why do you think there is a threat to your life now?  When I was in Colombo in 2007 the police and CID came and caught me on suspicion of LTTE.

2. This summary of the applicant’s statements differs from, relevantly, the claims articulated to the Tribunal by the applicant’s representatives and summarised at paragraph 49 of the Tribunal’s reasons:

   In a submission, dated 3 April 2013, the applicant’s representative states that the applicant fears harm on return to Sri Lanka because he is a Tamil, because of a political opinion and imputed political opinion as opposed to the Sri Lankan government and because of his membership of various particular social groups characterised as Tamils in Sri Lanka, young Tamil men in the East or North of Sri Lanka, people suspected or accused of being members of, associating with or supporting the LTTE.

3. The latter exposition of the applicant’s claims focused on the events of 2007 as evidence of the reality of the applicant’s claimed fears.  The entry interview relevantly referred to something else.  I read it to say:

   a)the LTTE came to the playground;

   b)the SLA shot the applicant’s friend on suspicion, presumably of having links with the LTTE;

   c)the applicant said that, since the shooting in 2005, the police had been looking for him for the same reason;

   d)after his friend was shot, he took fright and fled to Colombo;

   e)there was a threat to his life and that there had been one since 2005; and

   f)the reality of that threat was borne out by the events of 2007 in Colombo.

4. Paragraph 19 of the Tribunal’s reasons leaves one in no doubt that the entry interview was before the Tribunal.  The claim made in that document was sufficiently, clearly articulated that it could not be ignored by the Tribunal.  The significance of what the applicant said in relation to the events of 2005 is that it was a specific fear related to a specific event, rather than a more generalised fear of the sort set out in the applicant’s representative’s submissions, summarised at paragraph 49 of the Tribunal’s reasons.

5. If the Tribunal had concluded, as I think was potentially open to it, that the claim made in the entry interview was not pressed before it, then it need not have addressed it further.  However, it said that the claim had never been made.  I do not agree.  By failing to perceive the existence of that claim, the Tribunal failed to exercise its jurisdiction fully in that it failed to determine whether the claim was still being pressed and, if so, what was to be made of it.

Conclusion

1. The Tribunal should have dealt with that claim in one way or another, and because it did not do so, its decision was affected by jurisdictional error.  Consequently, I will set the Tribunal’s decision aside and remit the matter to the Tribunal to be determined according to law.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date:  21 July 2017