MZZMH v Minister for Immigration

[2019] FCCA 2305

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZMH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2305

Catchwords:
MIGRATION – Administrative Appeals Tribunal – whether the Tribunal considered all of the evidence and took into account relevant considerations – whether it was legally unreasonable for the Tribunal not to make enquiries – no jurisdictional error made out – further amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 36, 476

Applicant: MZZMH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3437 of 2016

Judgment of: Judge Street

Hearing date: 21 August 2019

Date of Last Submission: 21 August 2019

Delivered at: Sydney

Delivered on: 21 August 2019

REPRESENTATION

Counsel for the Applicant: Mr G Schipp

Solicitors for the Applicant: Sydney West Legal and Migration

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Grant leave to the applicant to rely upon the further amended application filed on 7 August 2019.

2. The name of the first respondent be changed to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

3. The further amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $7,000.00.

DATE OF ORDER: 21 August 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3437 of 2016

MZZMH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 29 November 2016 affirming the decision of a delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was born in 1995. On 21 May 2012, the applicant arrived in Australia as an irregular maritime arrival. On 20 September 2012, the applicant applied for a Protection (Class XA) visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

3. The applicant claimed to fear harm by reason of being a young Tamil male, his religion being Hindu, his father having been kidnapped, his father’s imputed or actual involvement in the LTTE, feared mistreatment from the Sri Lankan Army (“SLA”), the Criminal Investigation Department (“CID”) and/or police and being a failed asylum seeker from a Western country who had illegally departed Sri Lanka.

4. On 14 December 2012, a delegate found that the applicant failed to meet the criteria for the grant of a Protection visa. On 19 December 2012, the applicant applied for review of the delegate’s decision to the Refugee Review Tribunal. On 17 May 2013, the Refugee Review Tribunal affirmed the delegate’s decision (“the first Tribunal hearing”). On 21 August 2013, a Registrar of the Court made orders by consent requiring a differently constituted Refugee Review Tribunal re-determine the application for review. On 31 January 2014, the differently constituted Refugee Review Tribunal affirmed the delegate’s decision (“the second Tribunal hearing”). On 27 February 2015, the Federal Circuit Court of Australia made orders dismissing the applicant’s application for review. On 16 September 2019, the Federal Court of Australia made orders setting aside the orders of the Federal Circuit Court and remitting the application for review to the Tribunal for determination. On 29 November 2016, the Tribunal affirmed the delegate’s decision. The decision the subject of these proceedings is the third decision by the Tribunal.

5. The Tribunal identified the background to the review application. The Tribunal referred to the fact that the applicant had appeared on two previous occasions before differently constituted Tribunals. The Tribunal also referred to the claims made in the first Tribunal hearing and to evidence being taken from the applicant’s brother who was also an applicant before that Tribunal. The Tribunal summarised what occurred in the first and second Tribunal hearings.

6. The Tribunal summarised the applicant’s claims and evidence. The Tribunal turned to the applicant’s evidence before it and noted that the applicant made a number of claims which he had not previously made.

7. On 17 June 2016, the Tribunal invited the applicant to give evidence and present arguments at a hearing on 20 July 2016 which the applicant attended. The Tribunal recorded what occurred in the course of the hearing. The transcript of the evidence of the applicant has been tendered.

8. The Tribunal referred to the applicant threatening self-harm on several occasions towards the end of the hearing and referred to having taken this matter into account in considering his claims. It is apparent from the transcript that the Tribunal endeavoured to respond sensitively to the applicant’s assertion that he would commit suicide depending on the outcome of the case. At one point, the Tribunal said that it hoped the applicant would not consider that action whatever the outcome. At the end of the hearing, the transcript records the Tribunal identifying that there are asylum seeker organisations in Sydney and information would be sent to the applicant.

9. The Court’s attention has also been drawn to a case note dated 21 July 2016 at page 378 of the Court Book which includes a comment that the harm risk alert had been activated. The case note dated 30 November 2016 at page 382 of the Court Book included a further comment suggesting that support be available for the applicant.

10. The Tribunal identified that the applicant had previously claimed that his family suspected that his father was taken by the CID or another government agency on suspicion of being involved with the LTTE because this is what the applicant was told by people in the village. The Tribunal also identified that, at the second Tribunal hearing, the applicant said that he did not know much about the incident and did not know if others disappeared when his father disappeared. The Tribunal noted that in the hearing before it the applicant claimed that his father was involved with the LTTE.

11. The Tribunal accepted that the applicant was a young child at the time his father disappeared, a teenager when he came to Australia, a youth when he appeared at the first Tribunal hearing, and just 18 years old when he appeared at the second Tribunal hearing. The Tribunal, however, found the variations in the applicant’s evidence to be of concern.

12. The Tribunal did not accept as convincing the reasons proffered by the applicant for not having claimed his father was involved in the LTTE earlier. The Tribunal referred to the applicant having been interviewed by the Department, having had two previous hearings and having been previously represented. The Tribunal did not find the applicant’s claimed reason for not disclosing details of the claim that his father was involved in the LTTE as credible. The Tribunal found that the applicant invented this to strengthen his claims.

13. The Tribunal referred to the applicant claiming that his father had been in hiding since his disappearance. The Tribunal found this implausible. The applicant then said that his family believed his father had disappeared but the authorities thought he was still in hiding. The Tribunal found the applicant’s explanation unconvincing and the claims implausible. The Tribunal did not accept the claims and was concerned that the applicant, now an adult, was willing to alter and tailor his evidence during the hearing.

14. The Tribunal accepted that the applicant’s father disappeared in 2002. The Tribunal did not accept, however, that the CID, army, LTTE or any other group, authority or person was responsible for the applicant’s father’s disappearance. The Tribunal did not accept that the applicant’s father was involved in any way with the LTTE, or perceived to be so by the authorities, and did not accept that the applicant’s father is in hiding and has been for 14 years, nor that the authorities believe or know this. The Tribunal also did not accept that the applicant’s relatives, who are in the United Kingdom and may reside there on the basis of them receiving asylum, were or are believed by the authorities to be LTTE members or supporters.

15. The Tribunal referred to the applicant’s claims that the CID and army harassed his family and came looking for the applicant and his brother. The Tribunal referred to the applicant’s claim that he was never at home when the authorities came and that he attended school. The Tribunal noted that, at the first Tribunal hearing, it was put to the applicant that it appeared implausible that the authorities would fear that a 7 year old boy and his brother, who would have been 9, would inform on them. The Tribunal also noted that, at the second Tribunal hearing, the applicant said that a few years after his father disappeared the authorities came looking for his brother.

16. The Tribunal referred to the applicant asserting in the hearing before it that his brother had been taken by the authorities and tortured. The applicant referred to this occurring after his father’s disappearance and referred to past interviews in which he had allegedly asserted that his brother was tortured. The Tribunal noted that in the previous interviews and hearings it did not appear that the applicant had claimed that his brother was tortured. The applicant asserted that he had and said his brother had told him about being tortured. The Tribunal raised with the applicant the absence of reference to the same in his statutory declaration.

17. The Tribunal explored with the applicant his claims that the army and/or CID came looking for him and his brother. The Tribunal found that the applicant’s evidence in relation to the army and/or CID looking for him and his brother was inconsistent over time and contained significant implausibilities. The Tribunal found that the applicant varied his evidence over time on whether they were looking for him or just his brother, whether he was ever home when they came and whether his brother had been caught, interrogated and tortured or not.

18. The Tribunal doubted the applicant’s explanation that his brother had only told him recently that he had been tortured but found that, even if it is true that his brother had concealed this from him, the applicant was able to give such little detail that the Tribunal did not believe that his brother was apprehended, tortured or interrogated.

19. The Tribunal referred to the applicant’s evidence containing significant inconsistencies. The Tribunal found the claim that the applicant and his brother were being searched for and were able to escape the authorities for 10 years to be completely implausible. The Tribunal found that these inconsistencies and implausibilities lead it to finding that the army, CID or any other authorities did not ever come looking for the applicant or his brother and that neither the applicant or his brother are of any interest to the Sri Lankan authorities. The Tribunal also found that it disbelieved the applicant’s claims that the authorities came looking for him or his brother since his departure, damaged their house and his family had to go into hiding or sleep in different places for safety.

20. The Tribunal referred to the applicant’s claim that if the authorities caught him they could make him do crimes or illegal things and found that completely implausible and without any basis.

21. The Tribunal did not accept that the applicant’s father had been taken or abducted by anyone, nor that he is in hiding, but that he has disappeared and that is all. The Tribunal did not accept that the army, CID or anyone else came searching for the brothers or that they found, interrogated and tortured the applicant’s brother. The Tribunal did not accept that the applicant, his brother or his family were or are of any interest to the authorities in Sri Lanka. The Tribunal did not accept that the applicant’s father was or is believed by the authorities to be involved with the LTTE, that the authorities had come seeking the brothers, that the authorities have any interest in them for any reason, that the applicant and his brother will be imputed with a pro-LTTE political opinion for any reason or that the authorities will be make the applicant and his brother do unlawful activities if they catch them.

22. The Tribunal did not accept that the authorities or anyone else had or have any interest in the applicant’s brother and did not accept that the applicant will face a real chance or risk of harm for any reason connected to his brother or his brother also seeking asylum. The Tribunal found that there was no real chance or real risk that the applicant will be harmed on his return to Sri Lanka for reasons of his father’s disappearance, his father’s or his brother’s or his own actual or imputed pro-LTTE political opinion, which the Tribunal did not accept the authorities hold, his brother having also sought asylum or for any reason connected with his father’s disappearance now or in the reasonably foreseeable future.

23. The Tribunal referred to the applicant’s claim that grease devils came to his house in 2012. The Tribunal noted that, at the first Tribunal hearing, the applicant did not raise the grease devil attack until prompted. The Tribunal also noted that, at the second Tribunal hearing, the applicant said he was not there when the attack occurred and did not know anything about any grease devil incident or problem. The Tribunal noted to the applicant that he had previously given evidence which appeared inconsistent as to whether he knew of a grease devil attack on his home. The applicant did not offer any explanation but responded with a threat of self-harm.

24. The Tribunal found that the applicant provided inconsistent evidence about whether a grease devil attack occurred on his home. The Tribunal did not accept that the age of the applicant explained the inconsistency in the evidence. The Tribunal did not accept that grease devils or a grease devil came to the applicant’s house in 2012, or at any other time, and broke windows and doors and that he was fearful for his sister who was inside the house. The Tribunal found that there is no real chance or real risk that the applicant or his family will be harmed in a grease devil attack on his return to Sri Lanka now or in the reasonably foreseeable future.

25. The Tribunal referred to the applicant’s claims in respect of a data breach. The Tribunal found that there is no real chance or real risk that the applicant will be harmed on return to Sri Lanka or in the reasonable foreseeable future on the basis of the data breach.

26. The Tribunal referred to the applicant’s claims in relation to his race and religion. The Tribunal did not accept that, if the applicant returns to Sri Lanka now or in the reasonably foreseeable future, there is a real chance that he will be imprisoned, tortured, extorted or harmed in any other way by anyone for reasons of being a young Tamil male from the north-west of Sri Lanka and a Hindu.

27. The Tribunal referred to the applicant’s claims in relation to returning to Sri Lanka as a failed asylum seeker. The Tribunal referred to the applicant having illegally departed Sri Lanka. The Tribunal accepted that the applicant would be processed and dealt with in the same manner as many other similar returnees and found that the applicant would not be harmed in this process. The Tribunal did not accept on the country information before it that there is a real chance or a real risk that the authorities will have any concerns in relation to the applicant’s imputed asylum claim which would lead to them harming him at any stage of his return and questioning, being charged and remanded and bailed, or him being possibly convicted and sentenced for his unlawful departure, or on his return to his home area, for this reason or because of his residence in a Western country, seeking asylum in a Western country or because of his illegal departure from Sri Lanka.

28. The Tribunal did not accept that there is a real chance or a real risk that the authorities will detain, harm, torture or kill the applicant due to any assumption that he has criticised the government in the course of seeking asylum or otherwise arising from his seeking asylum. The Tribunal did not accept that the applicant would be of adverse interest to the authorities on his return to his home area.

29. The Tribunal found that the applicant does not have a well-founded fear of persecution and did not accept that the applicant has a real risk of significant harm. The Tribunal referred to the applicant’s illegal departure and the country information in that regard. The Tribunal found that the Immigration & Emigration Act (Sri Lanka) applies generally to those who breach the provisions and it is not discriminatory on its face or its intent and does not differentially impact on any particular section of the Sri Lankan population.

30. The Tribunal found that the applicant’s brief remand by the authorities for questioning, charging and then awaiting a bail hearing will not of itself constitute systematic or discriminatory conduct. The Tribunal found that the applicant and/or his family will be able to pay any penalty imposed. The Tribunal found that there is not a real chance or real risk that the applicant will face serious or significant harm in the reasonably foreseeable future as a result of any legal penalty being imposed. The Tribunal did not consider that the imposition of a fine or the process of being charged and possibly convicted constitutes serious or significant harm.

31. The Tribunal expressly referred to the applicant’s background and his ability to establish his identity. The Tribunal found the chances remote that the applicant will spend more than a very short period, of hours or at most days to a fortnight, remanded in custody awaiting bail if he is to return to Sri Lanka. The Tribunal found that the risk that the applicant will be subject to torture or any other form of significant harm is remote. The Tribunal did not accept that the applicant will be singled out or intentionally harmed by the authorities while in remand.

32. The Tribunal referred to all the circumstances of the applicant and the findings made, both individually and cumulatively, and found that the applicant does not face a real chance of serious harm in Sri Lanka from the army, the CID, the authorities or anyone else arising from the disappearance of his father, his brother having also sought asylum, his race and religion, his status as a failed asylum seeker or returnee from a Western country, his membership of the Tamil community, or as a person who has left Sri Lanka illegally or for any other reason, alone or taken cumulatively, now or in the reasonably foreseeable future.

33. The Tribunal found that there are not substantial grounds for believing that there is a real risk the applicant will suffer significant harm on being removed from Australia to Sri Lanka. The Tribunal found that the applicant does not meet the criteria in ss 36(2)(a) or section 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the further amended application are as follows:

   1. The AAT fell into jurisdictional error, in that it failed to take into account, consider, or give active intellectual consideration to the evidence of the Applicant’s brother given at the hearing of 25 February 2013.

   2. The AAT fell into jurisdictional error, in that it failed to take into account, consider, or give active intellectual consideration to the mental health of the Applicant and/or his threats of self harm:

   Particulars

   a. Failure to consider the vulnerabilities of the Applicant in determining what constituted serious harm,

   b. Failure to consider the social stigma associated with mental health in Sri Lanka,

   c. Failure to consider the availability of mental health services in Sri Lanka,

   d. Failure to consider the impact that psychological conditions may have on his ability to present his case and answer questions,

   e. Failure to consider the impact of even a short period of detention on a suicidal person.

   3. The AAT fell into jurisdictional error in that it failed to make an obvious enquiry or exercise its discretion reasonably in regard to his mental health condition, including by way of organising a medical appointment.

Ground 1

1. In relation to ground 1, Mr Schipp of counsel on behalf of the applicant drew the Court’s attention to the absence of any discussion by the Tribunal in its reasons about the evidence given at the first Tribunal hearing concurrently or with the applicant. Mr Schipp accepted that there were references to the earlier hearings and drew attention to the fact that there was a reference to the applicant’s brother having given evidence in the first Tribunal hearing. Mr Shipp, however, submitted that the same were historical and did not identify the Tribunal taking into account that evidence.

2. Mr Schipp took the Court through the transcript of the applicant’s brother’s evidence in order to identify what was said to be material evidence which required a real and active intellectual engagement. In that regard, without referring to each line, Mr Schipp took the Court to the evidence of the applicant’s brother concerning the alleged kidnapping of the applicant’s father, the searching for the applicant and the brother by the CID and army, the reasons for protection whilst at school, the mother’s role, reference to the grease devil and the assumption that the kidnapping of the applicant’s father was by the LTTE.

3. Each of the matters referred to by Mr Schipp were matters which were identified in substance in the applicant’s claims and evidence summarised by the Tribunal. There was no material fact identified in any of the evidence given by the applicant’s brother which required any specific engagement by the Tribunal with that evidence, nor was any submission advanced before the Tribunal to that effect.

4. On a fair reading of the Tribunal’s reasons, which are not to be read with a keen eye for error, the Court finds it clear that the Tribunal took into account the evidence at the first Tribunal hearing. The Court makes this finding not only by reason of the Tribunal’s reference to the applicant’s brother’s evidence given at the first Tribunal hearing at paragraph 8 of the Tribunal’s reasons but also by reason of the Tribunal’s reference to what occurred at the earlier hearings in the other reasoning engaged in by the Tribunal which has been summarised above by the Court.

5. Mr Schipp submitted that there should have been an express engagement by the Tribunal with the evidence of the applicant’s brother and that, even if it were accepted that the Tribunal had referred to the same, there was not a real or meaningful engagement with that evidence. For the reasons already given, there was no evidence given by the applicant’s brother which required the Tribunal to make further express findings on the same.

6. Mr Schipp submitted that the evidence identified the applicant’s brother being in an intimate position in respect of the applicant’s claims and that he provided corroborate evidence. It is apparent that the Tribunal understood the claims which were being advanced by the applicant and the role allegedly played by the applicant’s brother. The adverse credibility findings were not findings which required reference to the evidence of the applicant’s brother, nor in light of those adverse credibility findings was it necessary for the Tribunal to make express reference to the applicant’s brother’s purported corroborative evidence in respect of those events.

7. The Court does not accept that the evidence of the applicant’s brother which has been identified was material which required the Tribunal to engage with the same expressly in its reasons. In these circumstances, no jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Schipp took the Court to the references in the transcript of the Tribunal hearing in respect of the threats of self-harm made by the applicant and to the Tribunal’s concern identified in relation to the potential for other assistance being provided to the applicant. Mr Schipp also referred to the case notes by the Tribunal which the Court has referred to above.

2. Mr Schipp submitted that the Tribunal failed to have a real and meaningful engagement with the applicant’s alleged mental impairment identified by the threats of self-harm. Mr Schipp also submitted that the Tribunal’s engagement was not sufficient as, the Tribunal having identified that it had taken into account the applicant’s threats of self-harm in considering his claims, there were different ways in which the applicant’s mental health might be taken into account and there was no explanation by the Tribunal as to how the same had been taken into account.

3. Mr Schipp referred to the different ways in which the applicant’s mental health might affect the applicant in respect of his vulnerability upon return to Sri Lanka, determining whether the applicant faced a real risk of significant harm and also the applicant’s ability to meaningfully participate in the Tribunal hearing.

4. Having had the transcript tendered, it is apparent that the applicant was able to meaningfully participate in the Tribunal hearing. It is also apparent that the Tribunal complied with its statutory obligations in the conduct of that hearing.

5. The reference by the Tribunal to taking the applicant’s threats of self-harm into account is entirely consistent with the Tribunal’s reasons, which expressly refer to having regard to the applicant’s circumstances at paragraph 54 of the Tribunal’s decision. That paragraph is the start of the analysis in relation to the applicant being a failed asylum seeker and an illegal returnee. The Tribunal further referred to having taken into account the applicant’s background and having regard to all the circumstances at paragraph 67 of the Tribunal’s decision.

6. The Court does not accept that it was necessary for the Tribunal to further explain how it had regard to the threats of self-harm. The Court does not accept that there was any claim advanced by the applicant or which fairly arose on the material before the Tribunal that required the Tribunal to make any express finding in respect of the applicant’s mental health. The assertions of self-harm, on the face of the transcript, were endeavours by the applicant to convey the position to the Tribunal that he wanted a successful outcome. This is not a case where the assertions of self-harm give rise to there being a plain integer in respect of the applicant’s state of mental health which required express findings.

7. For the reasons given, the Court accepts that the Tribunal took into account the applicant’s threats of self-harm as the Tribunal expressly referred to the same. The Court does not accept that it was necessary for the Tribunal to further explain, in the circumstances of this case, the reference to the applicant’s mental health or threats of self-harm in determining the criteria under the 1951 Refugees Convention or in respect of complementary protection.

8. For the reasons already given, it is apparent that the Tribunal took the applicant’s threats of self-harm into account. There was no other evidence advanced by the applicant as to the mental health of the applicant. The Court does not accept that the material before the Tribunal gave rise to a claim of a fear of harm based on mental health. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Schipp submitted that, because of the circumstances identified in respect of the threats of self-harm as well as the engagement by the Tribunal identifying assistance that might be available to the applicant and the case notes made by the Tribunal, this was a case in which there was a duty upon the Tribunal to make a further obvious inquiry by referring the applicant for a mental appointment. When asked by the Court in respect of whom an inquiry could easily be made to ascertain the material fact, Mr Schipp identified it would be a doctor.

2. The applicant carries the burden under s 5AAA of the Act of establishing his claims. There are circumstances in which there may be an easily ascertained material fact in respect of which it would be legally unreasonable for the Tribunal not to take steps to ascertain that fact. This is not such a case. Where the applicant participated in a hearing and had not sought to raise any mental health issue, the mere assertion in the course of evidence of threats of self-harm does not give rise to circumstances in which it can be said that it was legally unreasonable for the Tribunal not to exercise the discretion to refer the applicant for a medical appointment. Where the applicant has not raised any such claim and where the applicant has been invited to a hearing and had a real and meaningful hearing, the absence of any such step cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in ground 3 is made out.

3. Accordingly, the further amended application is dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  30 September 2019