MZZLM v Minister for Immigration

[2013] FCCA 2295

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZLM v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2295

Catchwords:
MIGRATION – Refugee Review Tribunal – show cause hearing – unparticularised claim of legal error – no error detected.

Legislation:

Federal Circuit Court Rules 2001, rr.44.12; 44.13

Migration Act 1958 (Cth), ss.424A, 425

Applicant: MZZLM

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 752 of 2013

Judgment of: Judge Riley

Hearing date: 14 October 2013

Date of Last Submission: 14 October 2013

Delivered at: Melbourne

Delivered on: 14 October 2013

REPRESENTATION

Advocate for the Applicant: The applicant appeared in person

Solicitors for the Applicant: The applicant was not represented

Advocate for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore Lawyers

Advocate for the Second Respondent: No appearance

Solicitors for the Second Respondent: Sparke Helmore Lawyers

ORDERS

1. The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration and Border Protection”.

2. The application filed on 28 May 2013 be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001.

3. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 752 of 2013

MZZLM

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is a show cause hearing in relation to an application for a review of a decision of the Refugee Review Tribunal pursuant to rule 44.12 of the Federal Circuit Court Rules 2001. 

2. If the court is not satisfied that the application has raised an arguable case for the relief claimed, the court may dismiss the application.  If the court is satisfied that the application has raised an arguable case for the relief claimed, the court may adjourn the proceeding and order the  respondent to show cause at a final hearing why an order for the relief claimed should not be made.

3. Under rule 44.13, the applicant is confined to the relief sought and the grounds mentioned in the application at the hearing of the show cause application. 

4. The applicant in the present case was not legally represented.  He filed an application saying that the decision of the Tribunal was affected by legal error.  The application gives no particulars and the applicant was unable to provide any particulars orally this morning.

5. The applicant claimed that he is a Tamil citizen of Sri Lanka and a Catholic.  He said that he was born in Sri Lanka’s eastern province. 

   
   

   He says his father was killed by the Sri Lankan army in 1990.  He said that in October 2005, the LTTE attempted to forcibly abduct him.  He said that he was able to escape but his friend was abducted.  He said that he lived in Colombo for five months and then moved to Dubai for work in 2007.  While he was there, he said that his mother told him that the family of his friend who had been abducted held him responsible and were seeking revenge. The applicant claimed that, in 2009, he returned to Sri Lanka and went into hiding.  He said that the brother of his deceased friend came to his house and threatened him with a gun.  He said that after he had come to Australia, the CID went to his home looking for him. 

6. The applicant made further claims in a written submission to the Tribunal, submitted by his then advisor.  He said that while he was in Dubai in 2007, his brother was abducted and killed by paramilitary groups.  He claimed that he had distributed leaflets for the Tamil National Alliance (“TNA”) in November 2010. He said that the CID came to his home and took documents relating to his TNA association on 21 December 2012. 

7. The applicant said that he would be imputed with the political opinion of supporting the LTTE because his identity card identified him as coming from an area formerly controlled by the LTTE.  He also claimed to fear persecution as a failed asylum seeker who had departed Sri Lanka illegally.  The applicant supported his claims with a letter from an MP in Batticaloa which purported to corroborate the applicant’s association with the TNA.

8. The Tribunal accepted that the applicant was a Sri Lankan citizen and a Tamil.  The Tribunal, relying on country information which it cited, did not accept that, as a Tamil from the north-east or a young Tamil male from a formerly LTTE-controlled area, the applicant faced a real risk of persecution. 

9. The Tribunal did not accept that the applicant had any particular profile that would lead to him attracting adverse attention from the Sri Lankan authorities.  The Tribunal did not accept that the applicant had been a member or supporter of the TNA.

10. The Tribunal considered that the applicant’s evidence in relation to the TNA claim was vacillating and lacked relevant detail.  The applicant’s claims in relations to the TNA were made late in the piece.  The Tribunal gave no weight to the letter provided by the Member of Parliament.  Consequently, the Tribunal did not accept that the CID had any interest in the applicant and did not accept that the CID had gone to his house looking for him. 

11. The Tribunal did not accept that the family of the applicant’s friend who had been killed sought revenge against him. The Tribunal noted certain discrepancies in the applicant’s evidence.  The Tribunal noted that the applicant had not explained why he would be held responsible for his friend’s death.  Additionally, the Tribunal noted that the applicant did not claim to have experienced any harm when he returned to Sri Lanka from Dubai in 2009 and before he departed for Australia in 2012.  The Tribunal rejected the applicant’s explanation for that, being that he was in hiding, because that was inconsistent with his claim to have publicly campaigned for the TNA and his claim to have met and married his wife.

12. The Tribunal did accept that the applicant was a member of a particular social group consisting of failed asylum seekers.  The Tribunal accepted that he had departed Sri Lanka illegally and would be subject to scrutiny if he were to return.  However, the Tribunal did not accept if the applicant were questioned, subject to surveillance or held briefly in detention, that these things would amount to serious or significant harm.  Relying on UNHCR guidelines, the Tribunal did not accept that the applicant would be treated differentially because of his Tamil ethnicity if he were to return to Sri Lanka.

13. The Tribunal did not accept that the applicant faced serious or significant harm under either the general refugee provisions or the complementary protection provisions.  The Tribunal consequently rejected the applicant’s application.

14. As mentioned previously, the only ground mentioned in the application is an unparticularised assertion of legal error.  I have been unable to identify any legal error in the Tribunal’s decision. 

15. The applicant, this morning, sought to tender further documents which he claimed substantiated the claims that he had made to the Tribunal.  However, as this court is not permitted to conduct a merits review, those documents are not relevant to the court’s consideration of the matter.

16. The first respondent submitted that the Tribunal made findings of fact that were open on the evidence before it and the weight to be given to those findings was a matter for the Tribunal. It was submitted that the Tribunal was permitted to place no weight on the letter from the Member of Parliament that purported to corroborate the applicant’s claims.

17. The first respondent submitted that the Tribunal properly considered all of the applicant’s claims and further submitted that there was no failure to comply with s.424A or s.425 of the Migration Act 1958.

18. In particular, the first respondent noted that the Tribunal’s reasons indicate that it put the critical issues to the applicant during the hearing before it.

19. In the circumstances, I accept the first respondent’s submissions. 

    
    

    I have not been able to detect any error in the Tribunal’s reasons, let alone a legal error as alleged in the initiating application.

20. Consequently I am not satisfied that the applicant has raised an arguable case and, therefore, the application must be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 14 January 2014