Mzzqa v Minister for Immigration
[2014] FCCA 3181
•24 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZQA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 3181 |
| Catchwords: MIGRATION – Refugee Review Tribunal – application dismissed. |
| Legislation: Migration Act 1958 ss.36(2A)(a), 422B Federal Circuit Court Rules 2001 r.15.03 |
| Abebe v Commonwealth (1999) 197 CLR 510 Kopalapillai v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; (2006) 92 ALD 513; (2006) 231 ALR 340; (2006) 81 ALJR 304; [2006] HCA 53 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 MZXHY v Minister for Immigration & Citizenship [2007] FCA 662 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Ozberk v Minister for Immigration & Multicultural Affairs (1999) 58 ALD 11; [1999] FCA 700 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 707 Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 SZJMG v the Minister for Immigration & Citizenship [2008] FCA 1145 Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 |
| Applicant: | MZZQA |
| First respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1198 of 2013 |
| Judgment of: | Judge Frank Turner |
| Hearing date: | 24 October 2014 |
| Date of Last Submission: | 24 October 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 24 October 2014 |
REPRESENTATION
| Counsel for the applicant: | The applicant appeared in person |
| Solicitors for the applicant: | The applicant was not represented |
| Advocate for the first respondent: | Mr Hornsby |
| Solicitors for the first respondent: | Sparke Helmore |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Sparke Helmore |
ORDERS
The application for judicial review filed 31 July 2013 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1198 of 2013
| MZZQA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First respondent
| REFUGEE REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for judicial review of the decision of the Refugee Review Tribunal dated 8 July 2013. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a protection class XA visa.
The Tribunal records, at paragraph 11 of its reasons for decision, many facts about the applicant and his claims. The Tribunal records that the applicant is a Tamil man from the Udappu village in the north-west of Sri Lanka and states that that area is not in the north or east of Sri Lanka which, at times, have been under the control of the Liberation Tigers of Tamil Eelam (“LTTE”).
The applicant claims he left Sri Lanka by reasons of harassment and persecution by the Sri Lankan Navy (“SLN”). He said that harassment and persecution was because he was a Tamil fisherman. He claims that his fishing boat was shot at by the SRN. He claims that the navy take the best fish from the fishermen, so he hid his best fish under his nets. The navy searched his boat. He told them he did not have fish, but the navy found them.
He claims that members of the navy then hit him and his father and put rifles to their heads. They hit him on the back of his head with the butt of a rifle. They hit his father, who then passed out. They were told to report to a navy site the next day, where the applicant was tied to a chair and beaten and accused of being a Tamil. The SRN then forced him to do work in the camp and kicked him. The camp commander told the offending SRN officer to release the applicant.
A few days later, officers of the navy came to the applicant’s house and threatened to shoot him. They took him a kilometre away, hit him and threatened to shoot him. The applicant’s parents followed and begged the navy to release the applicant. The applicant was released. The offending officer of the SRN told the applicant’s father that one day he would come to kill the applicant as he had humiliated him and caused him to get in trouble at the camp. The applicant stated the next day he fled back to Udappu. He was scared for his life. That is when he decided to flee to Australia.
The applicant claimed to be a Tamil fisherman from Udappu who feared harm from the SLN and other Sri Lankan authorities because of past incidents of harm and his Tamil ethnicity, in combination with his imputed political opinion as a supporter of the LTTE, illegal departure and member of the particular social groups comprising asylum seeker in Australia, Sri Lankan Tamils, young Tamil males and Tamil fishermen (see CB54 to 56 and CB145 to 200). The applicant also claimed that he would suffer extortion from the navy because they will assume he is wealthy due to his time spent in Australia.
The grounds in the application for judicial review are:
The decision of the Tribunal
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
By orders made on 16 October 2013, the applicant was ordered to file and serve written submissions 14 days before the final hearing. That has not been done, but the applicant handed the court written submissions today.
By those orders of 16 October 2013, the matter was set down for hearing on 4 February 2014, but on 24 January 2014, orders were made by consent to vacate the hearing on 4 February 2014 and the matter be adjourned for directions following the outcome of proceedings in matter S297 of 2013. That decision was made on 20 June 2014 and has no relevance to this matter as the regulation it concerned was disallowed by the Senate. The matter was therefore listed for today.
At the hearing before the court today, the applicant is self-represented. The first respondent is represented by Mr Hornsby. The court invited the applicant to put submissions to it and the applicant expanded slightly on the written submissions handed to the Court today. The court will deal with those submissions according to their number in the document handed to the court today.
The first issue raised by the applicant is that there is new information not considered by the Tribunal. An applicant is not able to put information to the Court that was not put before the Tribunal. An applicant for judicial review is confined to material put before the Tribunal, as referred to in SZJMG v the Minister for Immigration & Citizenship [2008] FCA 1145. Fresh evidence is not admissible unless it bears on some jurisdictional error. As decided in MZXHY v Minister for Immigration & Citizenship [2007] FCA 662, the court has no power to receive fresh evidence. Marshall J in Ozberk v Minister for Immigration & Multicultural Affairs (1999) 58 ALD 11; [1999] FCA 700 approved the above principle in a migration law framework.
The detail of that issue was that following the RRT hearing the police visited the applicant’s home in Sri Lanka and that:
They said that they had received a message from the Criminal Investigation Department that I am to be handed over to them as soon as I return to Sri Lanka.
That information post-dates the hearing before the Tribunal. It does not show a failure of the Tribunal to consider that information. It does not establish an error of law by the Tribunal.
The second issue is that the Tribunal failed to consider relevant and important documents. In relation to this issue, the applicant states that at the hearing before the Tribunal he handed over several articles in Tamil to the member. He sought to have them read if it could be translated by the interpreter. Those documents related to harassment of a fisherman.
At paragraph 26 of its reasons, the Tribunal said that the applicant sought to produce Tamil language newspaper articles and the member explained that they:
… would have to be in English if he wanted me to have regard to them.
The Tribunal had the power to require documents to be in English. In any event, the Tribunal accepted, at paragraph 17 of its reasons, that there has been harassment of fishermen as described by the applicant. At paragraph 18, the Tribunal found that the harassment was not sufficiently severe to have any major impact on the applicant’s ability to subsist. When asked about this, the applicant said to the Tribunal:
No problem at all. We had our own business making sufficient money to be reasonably comfortable, in fact, I would say life was good, we made about 25,000LKR per month on average.
The court finds no failure by the Tribunal to consider an integer of the applicant’s claims.
Counsel for the first respondent consented to the court proceeding to decision pursuant to r.15.03 of the Federal Circuit Court Rules 2001 and hearing oral submissions other than on the applicant’s submissions provided today.
The Tribunal found that the applicant had been harassed by the SRN, but as referred to found that the occasional harassment has not been sufficiently severe to have any major on the applicant’s ability to subsist (see CB212, paragraph 18). The Tribunal accepted that the applicant had suffered significant physical mistreatment from a rogue SRN officer and that the applicant faced or feared serious harm as a result, but the Tribunal did not accept that the past events give rise to a real chance of serious harm from the SLN or other government agent. (see CB214, paragraph 23).
The Tribunal did not accept the applicant had any particular profile due to past events that may be regarded as adverse in the eyes of the agents of the government of Sri Lanka. The Tribunal did not accept that there is a real chance that the applicant will experience serious harm or that there are substantial grounds for believing that there is a real risk that he will suffer significant harm in his home village in the west of Sri Lanka. (see CB212, paragraph 25).
The Tribunal did not accept that the applicant has a well-founded fear of persecution or that there are substantial grounds for believing that there is a real risk he will suffer significant harm in his home village. (see CB214, paragraph 25). The Tribunal was not satisfied that there is a real chance that the applicant would be subject to further threats that connote an actual intention to do harm or further physical mistreatment or harassment or that he would be killed as he claims. (See CB214, paragraph 26).
The Tribunal was not satisfied that there is a commonplace practice for navy officers to shoot people in Sri Lanka. The Tribunal did not accept that there is a real chance that the applicant will experience systematic and discriminatory serious harm now or in the reasonably foreseeable future if he were to return to Sri Lanka. (see CB215, paragraph 28).
At paragraph 29, the Tribunal concluded that the applicant does not have a well-founded fear of persecution now or in the reasonably foreseeable future or any Convention reason because of his claims about past events. As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
The above findings of fact are not amenable to review. There is evidence to support them, therefore they cannot be considered as errors of law.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at paragraph 10:
… to engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court.
And continuing later:
Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
As stated in Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347:
A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.
The court refers to the following decisions. In the Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 707 it was decided:
… no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.
The Tribunal’s conclusion that the applicant was not credible and his claims untrue are findings of fact. See W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703. So long as the Tribunal’s findings were open to it, no error is demonstrated. See Kopalapillai v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 and W148/00A. The Tribunal’s findings were open to it for the reasons it gives.
The court cannot review the merits of the Tribunal’s decision, see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In Abebe v Commonwealth (1999) 197 CLR 510, it was decided:
… there is no error of law … in making a wrong finding of fact...
The Tribunal found that the past events did not give rise to 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 removal to Sri Lanka. (see CB215, paragraph 30).
The Tribunal therefore considers complementary protection obligations under section 36(2A)(a) of the Migration Act 1958. The Tribunal considered the particular social groups claimed as stated at court book, 215, para 31. The court quotes from that page, para 31.
31.It is argues in written submissions that the applicant fears persecution for reason of his Tamil race, his membership of particular social groups comprising asylum seeker in Australia, Sri Lanka Tamils and young Tamil males and Tamil fisherman and his actual or imputed political opinion arising from his race and him being a Tamil fisherman.
32.It is also argued in written submissions that the applicant fears of persecution if he is returned to Sri Lanka by Australia at the airport on his return.
33.… I said that I had no information to indicate that Tamils from Udappu or the North-West were at risk of harm for reason of their place of origin.
…
35.I explained to the applicant the United Nations High Commissioner for Refugees had published, in December 2012, a set of Guidelines which set out types of people who may be at risk of harm in Sri Lanka. I said these UNHCR Guidelines indicate that simply being a Tamil was insufficient to say you should be protected. I explained that the Guidelines say some additional characteristic or attribute is required for him to be at risk of harm. I told the applicant the categories of persons the UNHCR suggested may be at risk of harm, namely:
(i)persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE);
(ii)certain opposition politicians and political activists; is that you? No
(iii)certain journalists and other media professionals; is that you? no
(iv) certain human rights activists; is that you? no
(v)certain witnesses of human rights violations and victims of human rights violations seeking justice; is that you? no
…
The applicant agreed that none of the categories stated by the UNHCR guidelines referred to in those paragraphs applied to the applicant, apart from suspicion of being LTTE. (see CB216, paragraph 37).
The Tribunal explained to the applicant that the UNHCR guidelines listed persons who may be suspected of LTTE association do not include people who have been over the east or who have sought asylum which may lead the Tribunal member to decide that the applicant may not be suspected of LTTE association. (see CB216). The Tribunal member asked the applicant to comment on that. (see CB217, paragraphs 40 to 42).
The Tribunal considered the country information submitted by the applicant and found that Tamil returnees who faced arrest, interrogation or torture has some past history that brings them within one of the groups that the UNHCR guidelines suggest are at risk.
The Tribunal gave little weight to country information about arbitrary detention or interrogation of failed asylum seekers. The weight that the Tribunal gives to evidence is a matter for the Tribunal; NAHI and Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361. The UNHCR guidelines did not suggest that returnees a group in need of international protection. (see CB 218).
The Tribunal made findings as set out at paragraphs 46 to 49 as follows:
46.I do not accept, based on the country information as a whole, that the applicant will be suspected or perceived to be connected to the LTTE, or otherwise have any adverse actual or imputed profile or political opinion for any reason connected with any attribute or characteristic he has including for reason of his Tamil race, his membership of particular social groups comprising asylum seeker in Australia, Sri Lankan Tamils and young Tamil males and Tamil fisherman and his actual or imputed political opinion arising from his race and him being a Tamil fisherman.
47.I do not accept, as a remote and far-fetched based on the country information, that there is a real chance that the applicant, will given that I have found he lacks any adverse profile in Sri Lanka, face some other form of serious harm or significant harm subsequent to his return as a member of any particular social group (in any permutation or combination) argued or because of his race, identity, age, past history, place of origin or residence, illegal departure or because he has sought asylum in Australia.
48.I find that the applicant does not, therefore, have a well-founded fear of persecution now, or in the reasonably foreseeable future, if he were to return to Sri Lanka for any Convention reason because of attributes or characteristics he has or relating to him returning to Sri Lanka having sought Australia’s protection.
49.Based on the same reasoning and the same ‘real chance’ test I find further none of the claims based upon his attributes or characteristics or returning to Sri Lanka after seeking Australian’s protection give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Sri Lanka, that there is a real risk that the applicant will suffer significant harm.
The Tribunal then considered the applicant’s unlawful departure from Sri Lanka. The member explained that he had information that on his return to Sri Lanka he will be screened at the airport which will establish to Sri Lankan Immigration his identity, the airport CID making inquiries about him to see if he is wanted for any crimes and a state intelligence service questioning him about his travel to Australia.
The Tribunal continued this process applies to every returnee equally, regardless of what race they are. It does not matter if the return is voluntary or involuntary. The Tribunal said, at paragraph 58:
… if I think of him being charged under the Immigrants and Emigrants Act if he spends a short time on remand in prison or is fined I do not think that amounts to persecution, because the harm would be the result of the enforcement or law of general application.
The Tribunal found at paragraph 71, that the Immigrants and Emigrants Act (Sri Lanka) is a law of general application. It does not give rise to persecution under the Refugees Convention.
The Tribunal then considered whether action pursuant to that Act would give rise to complementary protection obligations and decided that it would not. (see CB223, paragraph 78). That is a finding of fact that is not amenable to review. The Tribunal found that the applicant does not face a real chance of harm now or in the foreseeable future for any Convention reason and that there are no substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka there is a real risk that the applicant will suffer significant harm. (see CB224, paragraph 84).
The first respondent filed written submissions in this matter. The Court accepts paragraphs 27 to 29 as follows:
27.With respect to ground (1)(b) as this was a case to which s.422B of the Act applied, the Tribunal was not required to afford the applicant common law natural justice. The applicant was entitled only to the rights afforded to him under Part 7 of the Act and no breach of any of these provisions has been identified.
28.In any event, the Tribunal complied with its s.425 obligations by validly inviting the Applicant to a hearing on 3 July 2013. He attended the hearing with his representative and gave evidence in support of his claims. It is also apparent from the decision record that the Tribunal discussed with the Applicant during the hearing the concerns it had with his claims to fear harm as a result of his past mistreatment by the “rogue” SLN officer (see CB213 [20]-[21]) as well as the lack of support for his claims in the country information (see CB 215-219 [33], [35]-[36], [39], [41], [53] and [58]). As the Tribunal put the Applicant on notice at the hearing of these determinative issues and he had an opportunity to address them, no breach of s.424AA(1) is apparent. Furthermore, no obligations arose under s.424A as all information that formed the basis of the Tribunal’s decision was not “information” for the purposes of s.424A(1) or fell within one of the exceptions contained in s.424A(3).
29.The Application exposes no jurisdictional error by the Tribunal and should be dismissed with costs.
The Court finds no error of law in the Tribunal’s decision. Ground 1 alleges an error of law and ground 1 is dismissed.
Ground 2 complains of a denial of procedural fairness. Section 422B of the Act provides that this division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with. This matter comes within that division. An applicant must establish their case: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; (2006) 92 ALD 513; (2006) 231 ALR 340; (2006) 81 ALJR 304; [2006] HCA 53; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.
The applicant has not established a breach of that division. Ground 2 is dismissed.
The application for judicial review is dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Frank Turner.
Associate:
Date: 3 September 2015
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