MZZPZ v Minister for Immigration

[2014] FCCA 772

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZPZ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 772

Catchwords:
MIGRATION – Review of a decision by the Refugee Review Tribunal – claims that the Refugee Review Tribunal decision was effected by an error of law and the Applicant was denied procedural fairness – no error of law identified – Refugee Review Tribunal applied provisions of Division 4 of Part 7 of the Migration Act 1958 (Cth) – application dismissed.

Legislation:

Immigration and Emigration Act 1945

Migration Act 1958 (Cth), Div.4, Part 7, s.422B

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

Applicant: MZZPZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1199 of 2013

Judgment of: Judge Whelan

Hearing date: 2 April 2014

Date of Last Submission: 2 April 2014

Delivered at: Melbourne

Delivered on: 2 April 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Mr Hornsby

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application filed 31 July 2013 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1199 of 2013

MZZPZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. At the beginning of these proceedings, there was an oral application made by the Applicant for an adjournment of these proceedings.

   
   

   That application was refused on the basis that the Applicant had had notice of this hearing date since 16 October 2013.

2. The application for a judicial review was lodged on 31 July 2013.

   
   

   The application was to review a decision of the Refugee Review Tribunal (“the Tribunal”) that was made on 28 June 2013. The Tribunal had affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.

Background

1. The Applicant arrived in Australia on 17 May 2012. He made his application for a protection visa on 8 August 2012. The delegate refused that application on 30 October 2012, and the delegate gave reasons for that decision.[1] On 4 December 2012, the Applicant applied to the Tribunal for a review of that decision. The Applicant attended two hearings before the Tribunal, one on 26 March 2013 and one on

   
   

   16 May 2013. On both of those occasions, the Applicant was accompanied by his representative and was assisted by a Sinhalese interpreter. The Applicant’s representative also made written submissions[2] to the Tribunal.

   [1] Court Book filed 16 September 2013, at pp.76-100.

   [2] Ibid, at pp.133-140.

2. As previously stated, the Tribunal, in its decision, affirmed the decision of the delegate, which led to this application being made to the Court. The Applicant, in the application lodged on 31 July 2013, seeks the following:

   1.  A declaration that the decision of the Tribunal dated

   
   

   2 July 2013 is unlawful, void and of no force and effect.

   2.  Certiorari quashing or setting aside the decision of the Tribunal.

   3.  Prohibition directed to the first (sic) Respondent prohibiting him from acting upon or giving effect to or proceeding further upon the decision of the Tribunal.

   4.  Mandamus or an injunction compelling the first (sic) Respondent to cause the Tribunal to consider and determine according to law the Applicant’s application for a protection visa.

   5.  Costs.

   6.  Such further order or other Relief (sic) as the Court deems appropriate.[3]

   [3] Application filed 31 July 2013, at p.2.

3. The Applicant’s claims were contained in:

   ·A statement accompanying his original application for the visa;[4]

   ·Submissions made in support of the visa application;[5] and

   ·Submissions in support of the review to the Tribunal.[6]

   In essence, the Applicant claims to fear persecution on the basis of his imputed political opinion in support of the Liberation Tigers of Tamil Eelam (“LTTE”). The Applicant also claims that, between 2008 and 2010, he had been involved in taking Tamils to India on a fishing boat and that he was now wanted by Sri Lankan authorities for assisting the LTTE. The Applicant further claimed to fear being detained or punished for helping the LTTE or for people smuggling. Last,

   
   

   the Applicant claimed to fear harm because of his illegal departure from Sri Lanka and his status as a failed asylum seeker.

   [4] Court Book filed 16 September 2013, at pp.42-43.

   [5] Ibid, at pp.73-76.

   [6] Court Book filed 16 September 2013, at pp.133-140.

4. The Tribunal accepted that the Applicant was of Sinhalese ethnicity and that he has worked on a fishing boat in Sri Lanka. The Tribunal also accepted that the Applicant may have been involved in taking Tamils to India during the conflict and in the aftermath. It did not accept that the Applicant travelled to India as often as he claimed,

   
   

   or that the owner of the boat, and other crew members, had been arrested. The Tribunal also did not accept that the Applicant, the boat owner or other crew members were of interest to the authorities for people smuggling. It further did not accept that the

   
   

   Criminal Investigation Department (“CID”) would not have visited his family members, or found him in the seasonal fishing areas, if they were looking for him.

5. The Tribunal did not accept that the Applicant faced a real chance of serious harm because of an imputed political opinion arising from a suspected connection to the LTTE, or that he faced significant harm for that reason. Further, on the basis of country information, which was discussed with the Applicant at the hearing, the Tribunal found that the Applicant was not wanted by the Sri Lankan authorities and would not be subjected to any detention or interrogation on arrival in Sri Lanka, other than the usual questioning and procedures. The Tribunal was satisfied that the Sri Lankan Immigration and Emigration Act 1945 (“IE Act”) applied to all persons regardless of ethnicity, and that the terms of the law did not have a discriminatory intent or impact.

6. The Tribunal was also satisfied the Applicant would not be imputed with an anti-government opinion because he had applied for asylum in Australia and, in response to submissions made by the Applicant’s representative, the Tribunal rejected a claim that the Applicant might face a real chance of serious harm and a real risk of significant harm as a Tamil or as a failed Tamil asylum seeker. The Tribunal did not accept that the Applicant would be regarded as a people smuggler on return to Sri Lanka, or that he would be charged as a smuggler under Sri Lankan law. Consequently, as the Tribunal was satisfied that the IE Act was a law of general application that did not give rise to persecution,

   
   

   it concluded that the Applicant did not face a real chance of serious harm as a member of a particular social group of failed asylum seekers or returnees or persons who departed Sri Lanka illegally.

7. The Tribunal was also not satisfied that the Applicant would face significant harm while being held by the Sri Lankan authorities in connection with his illegal departure, while detained awaiting bail,

   
   

   or as a result of the imposition of any fine.

Grounds for review

1. The grounds for the review, as contained in the application,[7] stated that the decision of the Tribunal was affected by an error of law and that it denied the Applicant procedural fairness.

   [7] Application filed 31 July 2013, at p.3.

2. The application did not specify the error of law the Applicant stated was made by the Tribunal. In oral submissions to the Court today,

   
   

   the Applicant was unable to specify any error of law.

The First Respondent’s submissions

1. The First Respondent submitted that the Tribunal was not required to accept the Applicant’s claims at face value, and the weight to be given to his claims and evidence was a matter for the Tribunal to assess.[8]

   
   

   The findings were open to the Tribunal, on the evidence before it,

   
   

   and the Court cannot review the merits of the Tribunal’s decision.[9]

   
   

   The Tribunal also applied the correct test in assessing the Applicant’s complementary protection claims.

   [8] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630.

   [9] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259.

Conclusions

1. The First Respondent referred to an apparent inconsistency between the Tribunal’s findings that the Applicant was of Singhalese ethnicity and the findings that the Applicant did not face a real chance of serious harm as a Tamil, or as a failed Tamil asylum seeker. While there is nothing in the original application for a protection visa, or the statement made by the Applicant,[10] to suggest that the Applicant was of Tamil ethnicity, he, in fact, states that he is Singhalese and a Catholic, and refers at various times in his statement to his status as a Singhalese person, submissions made by his representative appeared to be made on the basis of discrimination on the grounds of Tamil ethnicity.

   
   

   The contradiction is, therefore, in the submissions that were put to the Tribunal, and not in the Tribunal’s findings. The Tribunal was, in fact, obliged to consider all of the claims.

   [10] Court Book filed 16 September 2013, at pp.42-43.

2. In relation to the question of procedural fairness, the First Respondent submitted that this was a case to which s.422B of the Migration Act1958 (Cth) (“the Act”) applied. The Applicant was, therefore, entitled only to the rights afforded to him under Part 7 of the Act, and the Applicant has not identified any breach of those provisions.

3. The First Respondent also pointed out to the Court a typographical error in the decision of the Tribunal which can be found at para.71 of the Tribunal’s decision.[11] The Tribunal’s decision must be read as a whole, and it is evident from the paragraphs preceding para.71 that the word ‘not’ has been inadvertently left out of line 5 in para.71. A finding by the Tribunal that the Applicant’s status as a failed asylum seeker, or a returnee who may be charged with improperly departing Sri Lanka, does give rise to substantial grounds for believing that there is a real risk he will suffer significant harm is inconsistent with the findings in the preceding paragraphs.

   [11] Ibid, at p.161.

4. I am satisfied that the Applicant has not been able to establish any error of law in the Tribunal’s decision. Nor, on a fair reading of that decision, am I able to discern any error of law. With respect to the claim that the Tribunal denied the Applicant procedural fairness, the obligations with respect to procedural fairness required of the Tribunal are set out in Div.4 of Part 7 of the Act. In accordance with those provisions,

   
   

   the Applicant was invited to attend a hearing. He was assisted at two hearing dates by his representative and by a Singhalese interpreter. There is nothing to suggest that the Applicant was denied the opportunity to present his case. Further, it would have been clear to the Applicant, both from the delegate’s decision and the matters put to the Applicant by the Tribunal, what the issues were that he needed to address. In reaching its conclusions, the Tribunal referred to the Applicant’s own evidence and to country information which was not specific to the Applicant himself. There was, therefore, no failure to put to the Applicant any matters which formed a basis for the Tribunal’s decision.

5. For those reasons, I am satisfied that this application should be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  15 April 2014