MZZON v Minister for Immigration

[2014] FCCA 1644

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZON v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1644

Catchwords:
MIGRATION – Application for judicial review of RRT decision – ground asserting Tribunal failed to assess applicant’s claims – ground asserting lack of evidence to justify finding that applicant’s conduct in Australia solely for purpose of enhancing protection claim – grounds not made out – jurisdictional error not established – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.36(2)(aa), 91R(1)(b), 91R(3), 424AA.
1951 Convention Relating to the Status of Refugees

Applicant: MZZON

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1097 of 2013

Judgment of: Judge Burchardt

Hearing date: 27 May 2014

Date of Last Submission: 27 May 2014

Delivered at: Melbourne

Delivered on: 12 August 2014

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Randall-Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed. 

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,640.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1097 of 2013

MZZON

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. By his application filed 17 July 2013 the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 June 2013 by which the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.  I will return to the four grounds asserted in the application in terms in due course.  For present purposes, it is sufficient to note that three of the grounds assert a failure on the part of the Tribunal to assess claims made by the applicant.  The fourth ground asserts that the Tribunal had no basis to find that the applicant’s conduct in Australia was solely for the purpose of enhancing his claim.

2. The applicant’s affidavit filed contemporaneously with his application takes the matter no further, and since the applicant has not, despite an opportunity provided in orders made by Registrar Allaway on

   
   

   2 October 2013, filed any further contentions, the Court has only the application and what the applicant said at Court on which to rely.

3. Unfortunately for the applicant, I have come to the conclusion that his grounds of application are not established and that the Tribunal did not fall into jurisdictional error.  It follows that the application must be dismissed with costs. 

The Applicant’s Claims

1. The applicant’s claims are not articulated in any detail in his original application which quite properly refers the reader to a statement which is set out at Court Book (“CB”) 27-29.  That statement asserts the applicant’s Tamil ethnicity and gives instances of harassment of the applicant’s family by the police including the alleged assassination of an uncle and regular beatings inflicted upon the applicant’s father and brother.  An uncle and brother fled overseas.

2. The applicant asserted that he was sent to Australia and developed a relationship with a Tamil girl in Australia.  The relationship was said to have given rise to disapproval on the part of the Tamil girl’s family and harassment by Sinhalese persons in Australia who disapproved of the relationship also.

3. The statement asserted that the Australian girlfriend’s father was very influential in this Sri Lankan government and it was asserted that the applicant’s activities in Australia had given rise to interrogation by the police of his father.  The applicant asserted that his mother told him that the police had accused the applicant’s older brother and himself of working for the Liberation Tiger of Tamil Eelam (“LTTE”) and had told him not to return to Sri Lanka.

4. The statement asserted that the applicant’s older brother, who had fled with an uncle (not the applicant’s father) to Europe, having successfully sought asylum there.  He indicated a fear that if he returned to Sri Lanka, he would be implicated with the LTTE and seen as a traitor.

5. The applicant submitted together with his application various documents including a letter from his mother, CB38, in which the mother asserted an assault upon her husband by the army and threats from the police.  She asserted that as a result, the applicant would face problems from the police if he returned to Sri Lanka and his life could be in danger also.

6. A number of other documents were filed to which it is not necessary at this stage to pay particular attention, although I note that they included an Intervention Order taken against the applicant by his Tamil girlfriend (CB47). 

7. The delegate’s decision runs from CB109-CB128.  The delegate summarised the applicant’s claims, CB112-CB113.  The applicant expanded upon the claims made in his statutory declaration and as far as I can see raised for the first time in terms the family’s ongoing support for the United National Party (“UNP”) and his father’s involvement in politics (a matter indicated in some of the materials filed but not given particular emphasis).

8. Otherwise, however, the matters advanced by the applicant were consistent with his statutory declaration.

9. It is sufficient for these purposes to say that the delegate did not accept that the applicant’s family were UNP supporters as claimed as no documentation to substantiate the claim was produced and the applicant’s interview with the delegate produced only rather generalised information. 

10. The delegate otherwise found the applicant’s claims implausible and concluded that the applicant’s expressed fear of persecution in Sri Lanka was not well founded. The delegate also considered the complementary protection regime pursuant to s.36(2)(aa) of the Migration Act 1958 (“the Act”) and likewise concluded that the applicant was not a person to whom Australia had protection obligations.

11. The applicant forwarded further documentation to the Tribunal including a letter from the assistant leader of the UNP (CB151) and various photographs (CB154-166).  These appear to have been taken at some sporting occasion and in some instances show a flag with a tiger emblem on it which I take to be a LTTE or LTTE associated flag.  He also forwarded a more recent report from his treating psychologist (CB167- 175).

The Tribunal’s Decision

1. Having set out the applicant’s claim and the relevant law, the Tribunal addressed the applicant’s claims and evidence at CB187- 200.  The Tribunal dealt with background matters and then dealt with each subcomponent of the applicant’s claims individually.

2. The Tribunal noted that the applicant was a 22 year old single male from Negombo in Sri Lanka who had declared his ethnic group to be Tamil and his religion Roman Catholic.  The Tribunal noted the applicant first arrived in Australia on 6 April 2008 on a student visa accompanied by his mother who returned to Sri Lanka in December 2008.  The applicant was given a further student visa in April 2010 which permitted him to remain in Australian until 15 March 2012.  He departed Australia in January 2011 and returned to Sri Lanka, returning again to Australia on 16 February 2011.  The applicant’s student visa was cancelled in November 2011 because he had ceased study and was found to have breached his visa conditions.  He remained unlawfully in Australia between 16 November 2011 and 12 December 2011 when he applied for the protection visa (paragraphs 18-20 CB187).

3. The Tribunal summarised the applicant’s substantive claims in a number of dot points on CB188. 

4. Having noted the decision of the delegate, the Tribunal said relevantly at paragraphs 25- 26, CB189:

   “The Tribunal accepts the applicant is of Tamil ethnicity, born, in Negombo Sri Lanka and that he travelled to Australia with his mother on a student visa.  The Tribunal accepts the applicant’s evidence that while he was in Australia he developed a relationship with, Sharika, a young Australian born Tamil girl.  Sharika’s parents did not approve of the relationship because the applicant was 18 years old and their daughter was 16 year old school girl at the time. The relationship became volatile and Sharika’s father assisted his daughter to obtain an Intervention Order in September 2010 and the relationship ended.  The applicant’s school friend (Isuru) also did not approve of the relationship and this caused tension in their friendship.  He returned to Sri Lanka in January 2011 and spent time with his family before returning to study in Australia in February 2011.  The applicant suffered stress and depression as a result of the breakdown of the relationship and feelings of homesickness and this affected his studies and as a result his student visa was cancelled.  He remained in Australia unlawfully until he applied for his protection visa on 13 December 2011. 

   Beyond these issues, however, the Tribunal does not believe any of the claims made by the applicant or that he genuinely holds fear of any harm should he return to Sri Lanka.” 

5. The Tribunal set out at paragraph 27 the claims of the applicant that it did not accept and went on at paragraph 28 to say:

   “In making its decision, the Tribunal has significant concerns about the credibility of the applicant, and finds that he gave inconsistent and conflicting evidence at different stages of the visa process.  The Tribunal found the applicant’s evidence vague and implausible.  The Tribunal also finds that the applicant participated in activities in Australia after he lodged his protection claim with the sole purpose of strengthening his claim.  The Tribunal’s credibility concerns are detailed below.”

6. The Tribunal first addressed the matter of political opinion.  It is not necessary to traverse the Tribunal’s findings in detail but they can be paraphrased as saying that the applicant, who had described his father as very active in politics, was unable to give enough details about his father’s activities to satisfy the Tribunal that this political activity had indeed taken place.  The Tribunal placed no weight upon the letter from Joseph Michael Perera, Member of Parliament, and found at paragraph 31, CB190-191:

   “The Tribunal places no weight on the letter in light of the applicant’s inability to provide coherent evidence about his father’s involvement in the UNP and country information which suggests that forged documents can be easily obtained in Sri Lanka.  The Tribunal raised these concerns with the applicant at the hearing.”

7. The Tribunal next considered the question of the applicant’s association with Tamil community and LTTE members in Australia.  At paragraph 34 the Tribunal said:

   “The applicant claimed he was an LTTE supporter and had many friends in Australia who were LTTE supporters and fighters.  He claimed he had donated money to the LTTE in Australia.  The Tribunal explained to the applicant that the LTTE was a banned terrorist organisation and it was surprised he would be donating money for such as a cause in Australia.  After further questioning, the applicant changed his evidence and said he had no interest in politics and was not an LTTE member but he had many Tamil friends who were members of the LTTE.  He claimed he only gave $1 or $2 donations for education purposes but could not provide any evidence to support his claims.  The Tribunal finds the applicant’s evidence about his involvement with the LTTE in Australia inconsistent, vague and lacking credibility. Tribunal finds the applicant was unable to explain his political beliefs and admitted that he had no political views when he came to Australia in 2008.  He said he was 17 years old and came to Australia with his mother to study.  The Tribunal accepts the applicant had Tamil friends in Australia but does not accept his evidence that they were members or associates of the LTTE.  The Tribunal does not accept the applicant was a member or associate of the LTTE or donated money to their cause in Australia.  As such the Tribunal concludes there is less than a real chance he would be imputed to have a political opinion supportive of the LTTE or opposed to the government if he returned to Sri Lanka now or in the reasonably foreseeable future.”

8. The Tribunal went on at paragraph 35, CB191 to address the photographs which the applicant had provided.  The Tribunal noted that the photographs were claimed to have been taken in Melbourne in January 2013 at a sporting celebration in honour of Colonel Kittu (Sathasivam Krishnakuma), who was an LTTE fighter and associate of the LTTE founder Velupillai Prabhakaran.  The Tribunal “finds that the photographs comprise new evidence that had not been presented to the Department.  The Tribunal notes that the photographs depict the LTTE flag and a picture of Kittu in the background.”

9. The Tribunal found at paragraph 36 that “the applicant provided vague and unconvincing answers about the location depicted in the photographs or why the LTTE flag was present”.

10. The Tribunal went on to say at paragraphs 37- 38:

    “37.  The Tribunal has assessed the photographs provided by the applicant and finds that they have been staged to ensure that the LTTE flag is visible in the background of the photographs.  The photographs appear to be choreographed, posed and are not taken inadvertently.  The Tribunal finds the photographs were taken after he lodged his protection visa application.  The Tribunal does not accept the applicant’s evidence that the photographs appeared on his Facebook site without his knowledge.

    38. The Tribunal has considered the applicant’s explanation about the photographs and the circumstances in which they appeared on his Facebook site, and finds that the applicant’s conduct was undertaken in Australia solely for the purpose of enhancing his protection visa claims. The Tribunal has disregarded this conduct pursuant to section 91R(3) of the Act.”

11. The Tribunal next considered the applicant’s relationship with the Australian Tamil girl.  Inter alia, the Tribunal observed at paragraph 42 CB193:

    “Pursuant to s. 424AA of the Act the Tribunal formally put to the applicant that it has access to information on the Department’s file that confirmed that Isuru (Isuru Vikasitha Croos) was born in 1990, his father was a Tamil fisherman in Sri Lanka and not highly influential Singhalese person within the Sri Lankan government.”

12. The Tribunal noted at paragraph 44:

    “The applicant did not ask for time before responding to the information.  He said that his English language skills were not very good and he struggled to express himself during the interview with the delegate.  The applicant admitted that Isuru’s father was a fisherman and worked as a courier driver and agreed he was not involved in politics but has powerful friends in the government. The Tribunal asked the applicant why he feared that Isuru’s father’s friend would have any interest in a Sri Lankan student who had been studying in Australia since 2008.  The applicant said that he suspects that Isuru would have told his father about his relationship with Sharika and that he has Tamil friends in Australia.  He admitted that he did not know if Isuru had told his father but was only guessing.  The Tribunal finds that the applicant’s fear of being persecuted by Isuru’s father’s friends in Sri Lanka is not well-founded.”

13. The Tribunal then considered the applicant’s Tamil ethnicity and imputed political opinion as a suspected LTTE associate.  While the Tribunal accepted that the authorities in Sri Lanka had dealt harshly with people considered to be in opposition to them, the Tribunal found at paragraph 48, CB195:

    “However, having considered the applicant’s evidence and his personal circumstances, the Tribunal does not accept that he has a profile with the Sri Lankan authorities due to his Tamil ethnicity or religion, his imputed or actual involvement or support for the LTTE, either directly or via association with family members, as well as by virtue of prolonged departure from Sri Lanka.  Therefore on all the evidence before the Tribunal it considers that the chance of the applicant being targeted for reasons of his race, religion or imputed or actual political opinion is not real, but is rather remote.”

14. The Tribunal next dealt with the applicant’s letter from his mother dated 14 March 2012.  The Tribunal concluded at CB.195-6 that:

    “Even if the applicant’s father was involved in protests, the Tribunal finds it implausible that someone who has been absent from Australia since 2008, apart from a short visit in 2011, would be targeted by the Sri Lankan authorities because his father was one of several thousand individuals who opposed the government’s increase in fuel prices in 2012.”

15. The Tribunal then dealt with a police report provided to the Department from the Negombo Police Station dated 16 September 2011 claiming that the applicant’s mother was threatened by Tamil people in Sri Lanka.  The Tribunal found the applicant’s explanation of the police report and its relevance to his claims to be vague and lacking detail, and went on to say at paragraph 50:

    “The Tribunal places no weight on the report in light of the applicant’s inability to provide coherent evidence about its relevance to his claims and country information, which suggests that forged documents can easily be obtained in Sri Lanka.”

16. The Tribunal then considered the applicant’s interpreter work for the Department of Immigration and Citizenship (“DIAC”).  The Tribunal accepted the applicant’s claim to have worked as an interpreter for DIAC assisting the processing of Sri Lankan refugee claims, but found that he would be one of many Sri Lankan interpreters who worked for the Department on contract.  The work was for a brief period and the applicant was not a decision-maker or departmental delegate.  The Tribunal accordingly found that the applicant would not be recognised by failed asylum seekers in Sri Lanka and found evidence that he would be recognised by a Sri Lankan person from his village as vague and lacking in detail.  The Tribunal noted that the applicant agreed he was not recognised during his interpreting work in Australia and dismissed this aspect of his claim.

17. The Tribunal considered the applicant’s fears due to his Tamil ethnicity.  Based on country information and the United Nations High Commissioner for Refugees (“UNHCR”) guidelines, the Tribunal dismissed this aspect of the claim and noted at paragraph 56, CB198:

    “The Tribunal does not accept the applicant is an associate or member of the LTTE or will be perceived as such if he returns to Sri Lanka.  The Tribunal finds the applicant left Sri Lanka in April 2008 as an 18 year old young man with no political profile or affiliations.  It is also not satisfied there is any other evidence to support a conclusion that the applicant faces a real chance of persecution if returned to Sri Lanka now or in the reasonably foreseeable future for reason of his Tamil ethnicity alone.”

18. The Tribunal then noted the delay between the applicant’s arrival in Australia and his application for protection and found that if the applicant was genuinely sent to Australia to protect his life he would have sought asylum in Australia with the assistance of his mother soon after arrival (paragraph 57, CB198).  The Tribunal also noted the applicant’s return to Sri Lanka in 2011 as being inconsistent with claims of persecution and suspicion of being an LTTE member.

19. Having dealt with the psychological report provided by the applicant (which, in the scheme of this case, takes the matter no further) the Tribunal assessed the applicant’s claim to fear persecution as a failed asylum seeker.  The Tribunal put to the applicant that his travel history would suggest he is not of interest to the Sri Lankan authorities because he was able to freely travel in and out of Sri Lanka.  The Tribunal noted that the applicant still has a valid Sri Lankan passport and was no different than millions of other Sri Lankans who had travelled abroad for work or study.  Having considered country information, the Tribunal did not accept that there was a real chance the applicant would be persecuted because he would be identified by the Sri Lankan authorities as a failed asylum seeker/returnee to Sri Lanka (paragraph 62, CB199).

1. Having considered all these matters cumulatively, the Tribunal found that it was not satisfied the applicant faced a real chance of being targeted for or experiencing serious harm of the kind contemplated in s.91R(1)(b) of the Act for a Convention ground now or in the reasonably foreseeable future if he were to return to Sri Lanka. The Tribunal found his fear of Convention persecution was not well-founded.

2. The Tribunal went on to consider the complementary protection regime at paragraphs 64-74 CB200-201 and came to the conclusion the applicant did not meet that criterion.

The Applicant’s Submissions at the Hearing

1. The applicant, who was self-represented with the assistance of an interpreter, made oral submissions to the Court.  He described the commencement of his time in Australia and said he really wanted to study.  He had come to Australia with his mother but there were other problems, including those experienced by his elder brother, his father and his uncle.  He said that his parents wanted him to come and study, but his mother advised him to apply for refugee status.  However, when he spoke to lawyers, the cost was estimated at $5,000.  The applicant said he was on a student visa at the time and thought he could not study if he applied for a refugee visa, and that was why he had not applied.  He described his relationship with his former girlfriend, with whom he was still in love, and was studying Year 12 at that time.  Even after the Intervention Order they were still talking, and he received emails from her, but the end of their relationship made him distressed.  He went to Sri Lanka only for a short time and, during that time, while he was staying with his parents for a few days, the police came around.  He said he could not forget his first love and was living a miserable life. 

2. He referred to his interpretation work and then referred to the photographs that had been provided.  He said the photographs were taken in Adelaide (contrary to the Tribunal’s finding that they were said to have been taken in Melbourne).  He said these photographs reflected an event held every January in the LTTE community.  It was a sports festival held every year and he was a member.  He said the Tribunal had said this was done to enhance his visa prospect.

3. The applicant said he had interpreted in respect of 120 asylum seekers in Darwin and people were upset when they failed and were angry with him.  He said he would be tortured and would be found.

4. It is not necessary to paraphrase the short submissions made by counsel for the first respondent, who took the Court to various parts of the judgment which, it was submitted, dealt with the matters of which the applicant complained.

5. In reply, the applicant said that the photographs were of a sports festival and that after the delegate refused his application on the basis he had no documents, he decided to submit these materials.

Ground 1- The Tribunal has erred by not assessing my claim that I will suffer persecution in Sri Lanka because of my relationship with a Tamil woman in Australia.

1. The immediate and obvious difficulty with this ground, in my view, is that the Tribunal did deal with this matter.  The Tribunal expressly accepted that the relationship had existed and became volatile (paragraph 25, CB.189).  The Tribunal did not, however, accept that the girl’s father was a member or an associate of the LTTE. It should be noted the applicant admitted the girl’s father had left Sri Lanka in the 1980s and was an Australian citizen and could not have been involved in the Sri Lankan Civil War (paragraph 39, CB192).

2. The Tribunal also did not accept that Isuru’s father was a significant person in the Sri Lankan government, scarcely surprisingly given that the applicant, in fact, conceded this despite his earlier assertions to the contrary.

3. In the end, the findings of fact that the Tribunal clearly made about all aspects of the applicant’s relationship with the Australian Tamil girl and any matters associated with it was a fact-finding exercise in which the Tribunal’s findings were clearly open to it.  This ground is not made out.

Ground 2- The Tribunal has not assessed my claim that I will be perceived as an LTTE sympathiser and its imputed political opinion.

1. Once again, the difficulty with this assertion is that the Tribunal clearly did address these matters under the headings ‘Political Opinion’ and ‘Association with Tamil Community and LTTE Members in Australia’ and the matters set out under those headings at CB.190-192. The reality is that the Tribunal did consider these matters but made factual findings against the applicant’s assertions.  This ground cannot be made out.

Ground 3- The Tribunal has not assessed my claim that I am a Tamil and my family was associated with the UNP, the opposition party.

1. Once again, the difficulty with this claim is that the Tribunal was well-aware that the applicant claimed that he and his family were UNP members (see second dot point, CB188).  For the reasons set out at paragraphs 29-32, the Tribunal assessed this claim and decided it contrary to the applicant’s assertions.

2. Minds might legitimately differ as to whether or not the Tribunal’s decision was the appropriate one.  That is the case in all such factual matters and would encompass grounds 1 and 2 also.  What is clear, however, is that the Tribunal was well-aware of what the applicant’s claims were.  The Tribunal was well-aware of the task it had to undertake, namely, to evaluate whether or not the Tribunal was prepared to accept the applicant’s claims.  The Tribunal did not accept his claims.  It did not fall into jurisdictional error in that regard.

Ground 4- The Tribunal has no basis to say that my conduct in Australia was solely for the purpose of enhancing my claim for protection as they were not presented to the department.

1. This ground, in my view, is in part misconceived.  While the Tribunal did note that “the Tribunal finds that the photographs comprised new evidence that had not been presented to the Department” (paragraph 35, CB191), there is nothing in this section of the decision which deals with this aspect of the matter (paragraphs 35-38) which suggests the Tribunal allotted any weight to the fact that the photographs had not been provided previously. This was the only part of the applicant’s claims that had not previously been presented.

2. What the Tribunal did do, however, was to assess the photographs and form the conclusion that the photographs had been, so to speak, concocted for the purposes of assisting the applicant’s visa claims.  Once again, minds might differ as to whether that was so, but this was plainly a factual issue before the Tribunal which the Tribunal was required to consider and determine.  It did so.  That does not reveal jurisdictional error.

Conclusion

1. Since none of the applicant’s grounds of application are made out, the application must be dismissed with costs.

2. I should in conclusion make it clear, however, that I have read the Tribunal’s decision carefully as a whole, given the applicant’s self-representation and self-evident difficulty with English.  In my view, the Tribunal’s decision shows a thorough examination of the applicant’s claims and a proper determination of them.  As I have already said, minds might differ as to the conclusions the Tribunal reached, but the decision does not disclose jurisdictional error.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  12 August 2014