MZZLL v Minister for Immigration
[2014] FCCA 2958
•10 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZLL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2958 |
| Catchwords: MIGRATION – Application for review of decision by the Refugee Review Tribunal – alleged error of law by the Tribunal not particularised – Tribunal dealt with all claims raised by Applicant – no error of law by Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Applicant: | MZZLL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 751 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 10 December 2014 |
| Date of Last Submission: | 10 December 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 10 December 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr Brown |
| Solicitors for the First Respondent: | Australian Government Solicitors |
ORDERS
The Application filed 28 May 2013 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 751 of 2013
| MZZLL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 29 April 2013. The Tribunal determined to affirm a decision of a delegate of the Minister not to grant the Applicant a protection visa.[1]
[1] Court Book filed 26 August 2014 at pp.56-66.
Background
The Applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived by boat at Christmas Island on 17 May 2012. The Applicant lodged an application for a protection visa on 6 August 2012. A delegate of the Minister interviewed the Applicant on 11 August 2012 and made a decision to refuse the visa application on 10 September 2012.
An application for review of the delegate’s decision was made to the Tribunal on 10 October 2012 and a hearing took place on
27 March 2013. At the hearing, the Applicant was represented by a migration agent and was assisted by an interpreter. He gave evidence and presented arguments. The Tribunal handed down its decision[2] on
28 April 2013 and the Applicant made this application for judicial review on 28 May 2013.
[2] Court Book filed 26 August 2013 at pp.122-137.
The Applicant’s claims
The Applicant’s claims can be summarised as follows:
·Tamils were a minority in the town where he lived and worked before coming to Australia and “he was often racially abused by Sinhalese customers at the hotel where he worked”.[3];
[3] First Respondent’s Contentions of Fact and Law filed 19 November 2014, p.2 at para 10.1
·Every six months the police would come to the hotel to confirm his identification and registration for living in the area; the Sinhalese population were not subject to the same checks.[4] ;
·On one occasion in 1999 he was taken to the police station and detained overnight and he believed that this had happened because he was a Tamil from the east of Sri Lanka;
·In February 2012, several officers from the Criminal Investigation Department (“the CID”) harassed the Applicant for money but he told them that he had none and they let him go. About three weeks later the men returned and threatened to kidnap him if he did not pay money to them; and
·As a consequence, he left Sri Lanka because he was afraid for his life. The CID subsequently visited his home looking for the Applicant which prompted his wife and children to move to live with her parents:
The Applicant feared if he returned to Sri Lanka he would be seriously harmed or killed by the CID, as they acted with impunity and there was no state protection for Tamils in
Sri Lanka.[5]
[4] Ibid at para.10.2.
[5] First Respondent’s Contentions of Fact and Law filed 19 November 2014, p.3 at para.10.4.
At the Tribunal hearing, the Applicant gave evidence that his family had moved and he was unaware of anything adverse having happened to them since that time.
The Applicant gave further evidence consistent with his original statement including that, on one occasion, his face had been slapped by a Sinhalese customer. Some of his evidence particularly that concerning the visits by the CID men, was not consistent with his original statement. The Applicant’s representative submitted that “he faced a real chance of persecution by the CID and the Sri Lankan authorities because he was a Tamil from a Tamil-dominated area”.[6]
[6] Ibid, p.3 at para.12.1.
It was also stated that, as a failed asylum seeker, he would be “imputed with anti-government political opinion (CB p 128 at [29])”.[7] It was further submitted that “there was systematic discrimination against Tamils in Sri Lanka that was officially tolerated and condoned” and that this “amounted to persecution (CB p 128 at [30])”.[8]
[7] Ibid.
[8] Ibid, p.4 at para.12.3.
The Tribunal’s decision
The Tribunal accepted that there was a police practice of directing identification and registration document checks at Tamils but not at Sinhalese people. It found, however, that this did not amount to persecution under the Refugee Convention (“the Convention”) or significant harm under the complementary protection provisions.
The Tribunal accepted that the Applicant had experienced detention overnight by the police on one occasion in 1999. The Tribunal found, however, that this did not amount to persecution under the Convention or significant harm under the complementary protection provisions.
The Tribunal accepted that the Applicant had been subjected to discriminatory treatment by customers of the restaurant in which he worked, including that he was on one occasion slapped by a Sinhalese customer. The Tribunal found, however, that:
[T]he level of discrimination experienced by the Applicant by reason of his ethnicity did not amount to persecution under the Refugee Convention and Protocol, or significant harm … under the complementary protection provisions.[9]
This included being slapped on one occasion by a Sinhalese customer which the Tribunal considered constituted physical harm but did not amount to serious or significant harm.
[9] First Respondent’s Contentions of Fact and Law filed 19 November 2014, p.4 at para.15.
The Tribunal found that the Applicant was unconvincing and inconsistent in his evidence about the CID extortion demands. The Tribunal was not satisfied that the Applicant had been subject to claims for money from the CID or threats from the CID. As a consequence, the Tribunal found that the Applicant would not be “at risk of serious harm, or significant harm”[10] because he had refused to meet such demands.
[10] Ibid, p.5 at para.17.
On the basis of country information, the Tribunal did not accept that there was a real chance or risk that the Applicant would be imputed with anti-government political opinions as a failed asylum seeker.
The Tribunal accepted that the Applicant had left Sri Lanka illegally and considered country information with respect to returnees. The Tribunal accepted that, under Sri Lankan law, a person who left the country illegally would be detained for questioning and for security and character checks upon return to Sri Lanka. They would be remanded and charged with an offence of having departed the country illegally.
The Tribunal found that this was a law of general application which would apply to the Applicant amongst others and that he would most likely face a fine after a court appearance: “The Tribunal did not accept that this amounted to serious harm for a Convention reason (CB pp 134/135 at [56])” or “significant harm for the purposes of the complementary protection provisions … (CB pp 136/137 at [66])”.[11] For these reasons, the Tribunal did not accept that the Applicant met the requirements of the Convention, nor the complementary protection provisions.
[11] Ibid.
Grounds for Review
The sole ground for judicial review put forward by the Applicant was “[t]hat the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error”.[12] In oral submissions, much of what the Applicant put to the Court consisted of claims with respect to a failure of legal representation or went to the merits of his case. The only matter that the Applicant raised with respect to the Tribunal was a claim that it failed to consider the incident to which he referred concerning the case of a Sinhalese customer hitting him.
[12] Application filed 28 May 2013 at p.3.
The First Respondent’s submissions
The First Respondent submitted that the Tribunal’s decision was comprehensive and carefully constructed. Each of the Applicant’s claims were considered in some detail, and “the Tribunal’s findings of fact were open on the available materials”.[13] The Tribunal’s conclusions “were not unreasonable, illogical or irrational”.[14] The Tribunal’s findings about the Applicant’s core claim of having been subjected to extortion attempts by the CID was “open on the materials, as the Applicant’s evidence in support of these claims was inconsistent and unconvincing”.[15]
[13] First Respondent’s Contentions of Fact and Law filed 19 November 2014 , p.6 at para.22.
[14] Ibid at para.23.
[15] Ibid.
The First Respondent referred to the Tribunal’s consideration of the issue concerning the Sinhalese customer slapping the Applicant and the Tribunal’s consideration of that incident. It was open to the Tribunal to find that that incident did not amount to persecution or significant harm. The First Respondent also put that the laws concerning persons who had left Sri Lanka were not applied in a discriminatory manner, and the Applicant’s potential detention would be in accordance with procedures established by law.
Conclusions
The Applicant was afforded an opportunity to attend a hearing to give evidence and present arguments and was assisted by a migration agent. Representations made by the migration agent at the hearing on the Applicant’s behalf were given consideration by the Tribunal. The Applicant’s sole ground for review was that the Tribunal made an error of law. The Applicant did not provide any particulars of what the error was that he alleged the Tribunal made.
In Court today, the only matter to which he referred was an alleged failure by the Tribunal to consider material concerning an incident where he was slapped by a Sinhalese man. I am satisfied that the Tribunal dealt with that issue at paragraphs [16] and [17] of the decision, which can be found at pages 125 and 126 of the Court Book. The Tribunal was required to assess the Applicant’s claims and make findings and provide reasons for those findings. The Tribunal has done this.
The Tribunal accepted that the Applicant had been subject to a certain level of discrimination because of his Tamil ethnicity, but found that this did not amount to persecution or significant harm for the purposes of the Convention or the complementary protection criteria. The Tribunal did not accept that the Applicant had been subject to extortion demands based on its assessment of his evidence, taking into account the inconsistent and contradictory nature of that evidence.
The assessment of the Applicant’s credit was a matter for the Tribunal. The contradictions in his evidence were put to him and he was given an opportunity to respond. The Tribunal assessed the country information on failed asylum seekers and found that there was no real risk that the Applicant would be subjected to significant harm on that basis. The Tribunal also found that while the Applicant would be subject to certain procedures as a person who had left the country illegally, these were laws of general application, not applied discriminatorily. Based on country information, the Tribunal considered the consequences of departing the country illegally did not amount to serious harm for a Convention reason or significant harm for the purposes of the complementary protection criteria.
I am unable to find where the Tribunal, in dealing with the Applicant’s claims, made any error of law. For these reasons, the application is dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 17 December 2014
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