MZZMD v Minister for Immigration

[2014] FCCA 2274

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZMD v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2274

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal – Application for a Protection (Class XA) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 46A(2)

1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

Applicant: MZZMD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 839 of 2013

Judgment of: Judge Hartnett

Hearing date: 2 October 2014

Delivered at: Melbourne

Delivered on: 2 October 2014

REPRESENTATION

The Applicant: In Person

Counsel for the respondents: Ms Wende

Solicitors for the respondents: Sparke Helmore Lawyers

ORDERS

1. The Application filed 12 June 2013 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 839 of 2013

MZZMD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made 16 May 2013.  The Application was filed on 12 June 2013.  Its grounds are stated to be as follows:-

   “1.  The decision of the tribunal:

   (a) is affected by an error of law.

   (b) takes into account irrelevant considerations.”

2. There was no particularisation of the grounds as stated by the Applicant in his Application. 

3. The First Respondent filed a Response on 24 June 2013 seeking dismissal of the application.  The parties appeared before Registrar Caporale on 21 August 2013 wherein Orders of a procedural nature were made by consent.  Included amongst them were orders providing for the Applicant to file and serve any amended application including any additional grounds of review with complete particulars of each ground, which the Applicant elected not to do.  Further, the Applicant was ordered pursuant to order 5 of those Orders to file and serve written submissions 14 days before the hearing this day.  The Applicant failed to do so. 

4. The First Respondent relies upon its Response filed 24 June 2013; the evidence as contained in the Court Book filed on 30 July 2013; and the First Respondent’s Outline of Submissions filed 26 September 2014.  The application before the Court will be dismissed for the reasons which follow.  It is without merit. 

Background

1. On 10 June 2012, the Applicant, who is a citizen of Sri Lanka, entered Australia as an unauthorised boat arrival. On 24 July 2012, he participated in an Entry Interview. On 9 September 2012, the Applicant received notification of a decision under s.46A(2) of the Migration Act 1958 (Cth) (‘the Act’) to allow him to lodge a Protection (Class XA) visa (‘protection visa’) application, which he did that same day.

2. The Applicant claimed to fear harm from the Sri Lankan authorities on the basis of past events in Sri Lanka; his ethnicity; membership of a number of particular social groups variously described as Sri Lankan Tamils and Tamils from the north or east of Sri Lanka; his actual or imputed political opinion arising from his race as a failed asylum seeker; and because he left Sri Lanka unlawfully.

3. The issues for the Tribunal were whether the Applicant satisfied either the Refugees Convention[1] criterion in s.36(2)(a) of the Act or the complementary protection criterion in s.36(2)(aa) of the Act as a result of these matters either singularly or in combination.

   [1] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.

4. The Applicant claimed to have been involved in two specific disputes with military personnel:-

   a)the first dispute occurred in July 2011, when the Applicant was part of a group of 10 local men patrolling his village at night because they suspected a ‘grease man’ was active in the village.  One of the group smashed a light bulb at an unoccupied Army guard post.  An Army patrol came and took the group to a camp where they were questioned and held for two days.  The men were released after two days and were told not to stand on the road in groups in the future; and

   b)the second dispute in 2012 involved a Sinhalese man who was stationed at the Army camp in the Applicant’s village.  The man had borrowed the Applicant’s motorbike and returned it in a damaged state.  When the Applicant refused to lend him the bike again, the man became angry and came to the Applicant’s house drunk with three other men to harm him.  The Applicant was able to run away.  The police refused to register his complaint.

5. On 7 January 2013, a delegate of the First Respondent (‘the delegate’) refused the Applicant’s application for a protection visa.  On 11 February 2013, the Applicant filed an application for review in the Tribunal.  On 6 May 2013, the Applicant appeared before the Tribunal to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.  The Applicant was represented in relation to the review by his registered migration agent who attended the hearing. 

6. On 16 May 2013, the Tribunal affirmed the decision of the delegate under review.  The Tribunal considered the Applicant’s claims against both the Refugees Convention[2] criterion in s.36(2)(a) of the Act and the complementary protection criterion in s.36(2)(aa) of the Act. The Tribunal’s findings are accurately set out in the First Respondent’s Outline of Submissions filed 26 September 2014 as follows:-

   “10.1 The Applicant was generally truthful and [the Tribunal] accepted his claims of past harm.

   10.2 In relation to the first dispute, the Tribunal found that this was a type of “extra-judicial punishment” utilised by the Army because they disliked the idea of a group of Tamil men congregating at night in the village. The Tribunal accepted that this was ‘serious harm’ however found that it was a one off incident occasioned by the particular circumstances. Further, on the basis of country information, the Tribunal found that the ‘grease man’ phenomenon had ceased and that the chance of the Applicant being taken in by the Army again was remote and far-fetched.

   10.3 In relation to the second dispute, the Tribunal found that the dispute was a ‘personal dispute’ and that the man had never reappeared at the Applicant's home apart from the one occasion. The Tribunal concluded that the chance of the man seeking out the Applicant again and causing him harm was remote and far-fetched. The Tribunal also found that even if the Applicant encountered the man again it was a remote possibility that the Applicant would be harmed.

   10.4 The Tribunal accepted that the Applicant was a Tamil. It did not accept, however, on the basis of the 2012 UNHCR Guidelines, that he had a well-founded fear of persecution or real risk of significant harm from the authorities in Sri Lanka because he was a Tamil or a Tamil from the north-west. The Tribunal found that the north-west was not formerly occupied by the LTEE and that the Applicant had no profile which would make him of interest to the government. Further, the Applicant had never expressed or acted in opposition to the government and would not do so in the future.

   10.5 In relation to the Applicant's claims of harm as a failed asylum seeker, the Tribunal relied on the UNHCR Guidelines to find that whilst some Tamil returnees have faced arrest, interrogation and torture, returning asylum seekers as a group are not categorised as being in need of international protection. The Tribunal noted that the Applicant did not possess a profile which would bring him within one of the groups that the guidelines suggest are at risk.

   10.6 The Tribunal considered whether the Applicant would face harm because he left Sri Lanka unlawfully. On the basis of country information, the Tribunal found that the Applicant would likely spend a short period of time in remand or be fined and that this did not amount to persecution as it would be the result of the implementation of a law of general application. The Tribunal accepted that the conditions in Sri Lankan prisons are unpleasant however, found that the treatment or punishment the Applicant could face on remand for a short period was not degrading treatment or punishment.

   10.7 Further, with regard to a lack of evidence, the Tribunal did not accept the claim raised by the Applicant at the hearing that he would be subject to extortion as a result of being charged under the Immigrants and Emigrants Act.”

   [2] Ibid.

Consideration

1. The grounds as stated in the Application for review are unparticularised and, as such, meaningless.  When asked at the hearing this day what the error of law asserted by the Applicant was, the Applicant simply said he did not know.  When asked to point to irrelevant considerations in the reasons of the Tribunal which formed the basis of his application, the Applicant was unable to do so. 

2. The Applicant was further unable to identify any error of law in the Tribunal’s decision.  On a reading of the decision, it is apparent that the Tribunal applied the correct test in relation to the Applicant’s claim for a protection visa.  It stated the relevant law, and that the criteria for a protection visa may either be satisfied by way of the Refugees Convention[3] criterion in s.36(2)(a) of the Act or the complementary protection criterion in s.36(2)(aa) of the Act. The Tribunal made a finding with respect to each of the Applicant’s claims before dealing with the Applicant’s claims cumulatively.

   [3] Ibid.

3. The Tribunal identified the meaning of “real risk” with regard to the complementary protection criteria contained in s.36(2)(aa) of the Act, identifying it as the same as the real chance test of s.36(2)(a) of the Act. The Tribunal said in paragraphs 70 and 71 of the Decision Record dated 16 May 2013, the following:-

   “70. To satisfy the criterion in s.36(2)(aa), I must have ‘substantial grounds for believing’ that there is a ‘real risk’ that the applicant will suffer significant harm as ‘a necessary and foreseeable consequence’ of his return to the ‘receiving country’.  I take Sri Lanka to be the receiving country in question because I am satisfied that the applicant is a citizen of Sri Lanka.

   71. MIAC v SZQRB [2013] FCAFC 33 is unanimous Full Federal Court of Australia authority for the proposition that the ‘real risk’ element of the test in s.36(2)(aa) is the same as for s.36(2)(a): namely, is there a ‘real chance’ an applicant will suffer significant harm if returned to their country of nationality? A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility (Chan v MIEA (1989) 169 CLR 379).”

4. The Tribunal proceeded to consider the claims of the Applicant on the basis of the evidence before it and on the basis of country information before it. Matters were put to the Applicant as required under the Act and procedural fairness was afforded to the Applicant. The Tribunal’s findings of fact on the evidence before it were ones which the evidence provided for and nowhere does it appear that the Tribunal took into account irrelevant considerations.

5. Counsel for the First Respondent referred to the decision of Reeves J in SZNXA v Minister for Immigration and Citizenship[4] at paragraph 21 wherein his Honour said that it was impossible for the Court to perform judicial review by reference to grounds which are “unparticularised and general” in nature, as is the case here.  The Applicant has not identified any particular jurisdictional error that the Tribunal made in relation to the making of its decision.  There are no “obviously arguable grounds” that the Tribunal erred in making its decision[5].  It is not for this Court to consider whether the Applicant has (and what they might be) grounds that require the Court’s intervention on judicial review.

   [4] [2010] FCA 775.

   [5] SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601 at [5].

6. The application shall be dismissed and costs follow the event. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  15 October 2014