MZZOQ v Minister for Immigration

[2015] FCCA 3286

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZOQ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3286

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – adverse credibility findings – application for merits review – dismissed.

Legislation:
Migration Act 1958, s.424AA

Cases cited:

Minister for Immigration and Border Protection v WZAPN (2015) 146 ALD 480; (2015) 320 ALR 467; (2015) 89 ALJR 639; [2015] HCA 22
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 89 ALJR 292; (2015) 143 ALD 553; (2015) 316 ALR 161; [2015] ALMD 1163; [2015] ALMD 1164; [2015] ALMD 1285; [2015] HCA 3

Applicant: MZZOQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1102 of 2013

Judgment of: Judge Riley

Hearing date: 16 November 2015

Date of last submission: 16 November 2015

Delivered at: Melbourne

Delivered on: 16 November 2015

REPRESENTATION

Counsel for the applicant: The applicant appeared in person

Solicitors for the applicant: The applicant was not represented

Counsel for the first respondent: Richard Knowles

Solicitors for the first respondent: Sparke Helmore

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore

ORDERS

1. The application filed on 18 July 2013 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,825.

3. The title of the proceeding be amended so that the name of the second respondent is the Administrative Appeals Tribunal.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1102 of 2013

MZZOQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal (“the tribunal”). In that decision, the tribunal affirmed a decision of the delegate not to grant the applicant a protection visa. 

2. The hearing in this court was adjourned by consent pending the outcome of the application to the High Court in Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 89 ALJR 292; (2015) 143 ALD 553; (2015) 316 ALR 161; [2015] ALMD 1163; [2015] ALMD 1164; [2015] ALMD 1285; [2015] HCA 3. The hearing in this court was further adjourned pending the outcome of the application to the High Court in Minister for Immigration and Border Protection v WZAPN (2015) 146 ALD 480; (2015) 320 ALR 467; (2015) 89 ALJR 639; [2015] HCA 22.

3. The applicant is a citizen of Sri Lanka.  He is of Tamil ethnicity and Hindu religion.  He was born in the Amparai district of the Eastern Province in 1981.  He left Sri Lanka in 2007 and went to Malaysia.  He was assessed by the UNHCR in Malaysia and was found to satisfy the test of being a refugee.  In mid-2012, he moved to Indonesia. He then departed Indonesia and arrived in Australia by boat.

4. The applicant claimed that, by reason of his Tamil ethnicity, he would be suspected of supporting the Liberation Tigers of Tamil Eelam.  He also claimed that he faced a real chance of serious or significant harm at the hands of the Karuna group.  He said that his family had been threatened and mistreated by the Karuna group in the past and that the Karuna group had killed his brother.  He said that he had been taken by the Karuna group for the purposes of recruitment in 2007.  He said that he was able to escape later that night with the assistance of a family friend.

5. The tribunal conducted two hearings. After the first hearing, the tribunal obtained the applicant’s application to the UNHCR. The tribunal convened a second hearing at which the tribunal put to the applicant various inconsistencies between the account the applicant had given the UNHCR and the account he had given the department and the tribunal. The tribunal indicated in its reasons for decision that it put these discrepancies to the applicant pursuant to section 424AA of the Migration Act 1958 (“the Act”).  The tribunal’s reasons note that the applicant was given the opportunity to seek further time to give his response.  However, the applicant, who at that point had a representative, chose to give his response immediately.

6. The tribunal considered that there were significant discrepancies between the information that the applicant gave the UNHCR and the information the applicant gave the department and the tribunal.  The tribunal considered the applicant’s explanation for those discrepancies.  However, the tribunal was not satisfied by the applicant’s explanation.  Ultimately, the tribunal considered that the applicant was not a credible witness.  The tribunal concluded that the applicant’s claims in relation to the Karuna group were not true.  The tribunal concluded that there was not a real chance that the applicant would be harmed by the Karuna group or any related government authorities now or in the reasonably foreseeable future.

7. The tribunal also considered the position of the applicant as a returnee.  The tribunal noted that the applicant has said consistently that he left Sri Lanka lawfully.  The tribunal considered that there was some chance that the applicant would be briefly detained upon his return to Sri Lanka.  However, the tribunal did not consider such brief detention and questioning to constitute serious harm.  The tribunal did not accept that the mere fact of the applicant being a Tamil from the East would lead the authorities to suspect that the applicant was an LTTE supporter.

8. The tribunal considered that the fact of involuntary return would not lead the authorities to cause the applicant any serious harm.  The tribunal considered various other subsidiary claims made by the applicant and considered that they were not such that the applicant faced a real chance of serious harm upon his return to Sri Lanka. 

9. The tribunal also considered the complementary protection criteria.  The tribunal considered that there was only a remote chance of the applicant suffering any significant harm upon his return to Sri Lanka.  The tribunal concluded that the applicant is not a person to whom Australia owes protection obligations.

10. The application to this court appears to have been prepared without the benefit of legal assistance.  The applicant appeared in court today in person.  The applicant filed written submissions which give the appearance of having been drafted by a person with some legal training.  However, the applicant was not able to elaborate on anything stated in his documents before the court today. 

11. The single ground in the application to this court is as follows:

    Tribunal took irrelevant facts into consideration and decided not to grant visa. (errors in the original)

12. The applicant did not say what the irrelevant facts were.  It does not appear to me that the tribunal did take into account any irrelevant facts.  I do not consider that ground to be of any substance. 

13. The applicant said in his affidavit in support of his application:

    Tribunal has refused with giving an opportunity in my application.  There was no principal of natural justice followed. (errors in the original)

14. In his reply before the court today, the applicant said he had no opportunity to provide evidence of what had happened to him in the past.  When asked to explain that statement, he said that he was unable to get evidence from Sri Lanka.  The first statement in the affidavit is perhaps intended to mean “the tribunal has refused my visa without giving me an opportunity to get evidence in my application”.  If the applicant meant by this that he did not have the opportunity to get evidence from Sri Lanka, that is not indicative of jurisdictional error on the part of the tribunal.  The tribunal appears to have given the applicant ample opportunity to present his case.  The tribunal conducted two hearings and gave the applicant the opportunity to seek more time if required. 

15. The applicant also said in his affidavit that no principle of natural justice was followed. He has not explained in what respect no principle of natural justice was followed. The tribunal appears to have properly complied with s.424AA of the Act in respect of the UNHCR documents. Otherwise, there seems to be no basis for this allegation.

16. In the applicant’s written submissions, the applicant raised a number of points.  He was not able to elaborate on them in oral submissions before the court today.  In paragraph 6 the applicant said the following: 

    I respectfully submit that the Tribunl has place weight on the one and only contradiction between the Statement I give to the UNHCR and the one given to the delegate. I mistakenly I failed to mention to the UNHCR and that it is my brother who was kidnapped but mentioned that I was kidnapped. My detention did happen in 2007 to doubt my credibility. However, having taken into considerationmy plausible explanation that this could have been a mistake either in interpretation or in recording, he had been fair in his statement that “I should accept this even if I find did not trust his account, I should look to the country information, which showed these things did happen in Sri Lanka”. Having said this I submit, the Tribunal is not reasonable to cast serious concerns about my overall credibility and refuse my application. (errors in the original)

17. The applicant in this paragraph appears to be challenging the weight given by the tribunal to an aspect of the evidence before it.  The weight to be given to various items of evidence is a matter for the tribunal, except in rare circumstances, which do not appear to apply in this case.  The court is not permitted to interfere on the basis of the weight that the tribunal has given to a particular item of evidence. 

18. Paragraph 7 in the applicant’s written submissions is as follows: 

    I further submit that the Guideline requires that “ what is capable of being believed is not to be determined by the Tribunal subjective belief or gut feelings about whether I am telling the truth or not. The Tribunal should focus on what is objectively or reasonably believable in the circumstances. Even if there is doubt the Tribunal failed to give me the benefit of the doubt to me. (errors in the original)

19. Again, the applicant appears to be challenging the merits of the tribunal’s decision. 

20. Paragraph 8 of the applicant’s written submissions is as follows: 

    The Tribunal has not considered the country situation properly. The information from external sources indicates despite the LTTE defeat the authorities are still targeting Tamils. It is common ground that the Sri Lankan government is highly concerned about the resurgence of the LTTE or similar Tamil nationalist formations and had imposed military rule with a network of intelligence, So any one with suspected link could targeted. (errors in the original)

21. In this paragraph the applicant seeks to challenge the country information relied upon by the tribunal.  The tribunal is empowered to select appropriate country information and give it such weight as it deems fit.  Paragraph 8 does not disclose any jurisdictional error. 

22. Paragraph 9 of the applicant’s written submissions is as follows: 

    I respectfully submit that the Tribunal has erred in its finding that my fear is not well founded. The Tribunal had failed to analyze both the objective and subjective aspects of fear by not applying the real chance test.

23. The tribunal’s reasons for decision do appear to have thoroughly analysed both the objective and subjective aspects of the applicant’s claimed fear.  I am unable to discern any error or jurisdictional error in the tribunal’s application of the real chance test. 

24. In paragraphs 10 and 11 of the applicant’s written submissions he said the following: 

    The Tribunal failed to consider the issue of relocation. The inevitable question is who is going to provide any assurance for my safety and security in Sri Lanka. Obviously the government of Sri Lanka will not provide me any kind of security and the monolithic attitude of the Sri Lankan government will be a major inhibition for me to seek any kind of protection from state machinery, independent organizations or even from judiciary. There is no independence of judiciary, indigenous human rights organizations were silenced by the government by force and state sponsored human rights organizations are working along side the government.

    The fact whether I could be relocated in any other part in Sri Lanka other than north and east is beyond reality. I have relatives or friends either in Colombo or any other parts in Sri Lanka. I have no permanent abode in the south. The above factors completely negate the possibility of relocation within Sri Lanka. (errors in the original)

25. The tribunal was not required to consider the issue of relocation because it did not consider that the applicant faced a real chance of serious or significant harm in Sri Lanka.  There is no jurisdictional error disclosed in these paragraphs. 

26. In paragraph 12 of his written submissions, the applicant said:

    I annex all relevant supporting documents to substantiate my claim for protection visa to attention of your Honour’s Court. 

27. The applicant attached some letters.  I understand that they were not before the tribunal.  As such, the court cannot take them into account.  Paragraph 12 of the applicant’s written submissions discloses no jurisdictional error. 

28. I am unable to discern any jurisdictional error in the tribunal’s reasons for decision or in its decision-making process.  Consequently, the application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 9 December 2015