MZZRD v Minister for Immigration

[2014] FCCA 1845

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZRD v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1845

Catchwords:
MIGRATION – Refugee Review Tribunal – no matters of principle.

Legislation:  

Migration Act 1958, s.46A(2)

Applicant: MZZRD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1377 of 2013

Judgment of: Judge Riethmuller

Hearing date: 4 July 2014

Date of Last Submission: 4 July 2014

Delivered at: Melbourne

Delivered on: 14 October 2014

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: In Person

Counsel for the First Respondent: Mr McDermott

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: N/A

Solicitors for the Second Respondent: N/A

ORDERS

1. The Application filed on 28 August 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1377 of 2013

MZZRD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister on 17 October 2012 refusing to grant the applicant a protection visa.

2. Directions were made on 30 October 2013, two months after the application was filed on 28 August 2013, for the applicant to file and serve any amended application, any Supplementary Court Book and written submissions by 14 March 2014. The applicant filed nothing and appeared unrepresented at the hearing of the matter on 4 July 2014.

3. The applicant is a citizen of Sri Lanka, who arrived at Christmas Island as an unauthorised maritime arrival on 29 May 2012. On 13 July 2012 he participated in an entry interview. The Minister exercised power under s.46A(2) of the Migration Act1958 to allow the applicant to lodge a protection visa application, which he did on the same day, being 30 August 2012.

4. The applicant relied upon a number of factual bases for his claim for protection, which can be summarised as:

   a)His father was abducted at gunpoint in 2007 (this was not reported as the family believed they would be in danger from Sri Lankan authorities); 

   b)In 2008 people came to his home and searched for him, following which he remained in hiding believing that it was the same men that had abducted his father; 

   c)In 2011 he says that he learnt that the Sri Lankan government authorities were looking for him and suspected him of being a supporter of the LTTE; and

   d)All Tamils are said by the applicant to be perceived to be LTTE supporters and therefore against the government.

5. The applicant’s claims are summarised in detail by the Tribunal in paras.23 to 76 of the decision. Thereafter the Tribunal considers the evidence that the applicant gave in each of his three separate hearings, the first on 17 December 2012, the second on 14 January 2013, and the third on 10 July 2013.

6. During the course of the hearings, further incidents were alleged, including harassment by the Criminal Investigation Department, the Army and an incident that was said to occur at a party in 2009.

7. After carefully reviewing the applicant’s evidence the Tribunal rejected all of the applicant’s factual claims on the basis that the Tribunal did not find that the applicant’s evidence was credible.  The Tribunal said in the decision:

   192. In all the circumstances, the Tribunal does not accept as credible the applicant’s claims about his father having been abducted and about subsequent interest in him due to an association with his father and a suspicion that he was involved in arms smuggling or terrorist activity. It does not accept as credible his claims about people coming to his home in 2008, about being detained by the army in 2009, about people coming to look for him again in September/October 2011 and about being sought after his departure from Sri Lanka. For reasons set out above, it finds these claims to be lacking in credibility on their face. In relation to the claims interest in the applicant and visits to his home, the Tribunal is reinforced in its view by the applicant’s failure to maintain a consistent account in relation to the visits to his home. The Tribunal has not accepted the “Message Form” as a genuine document issued by the Sri Lankan authorities. As set out above, the Tribunal has not accepted that the applicant was detained and beaten by the army in 2009 as claimed. It does not accept that people ever came to his house searching for him or threatening his mother or accusing him and his father of being involved in arms smuggling. It does not accept that they came in 2008 or at any other time. The Tribunal does not accept that the authorities or people in white vans or anyone else were ever looking for the applicant because of a connection with a fisherman, because of matters connected with working as a fisherman, because he or his father were suspected of involvement in smuggling arms, for any other reason. It does not accept that he ever came to the adverse interest of the authorities or anyone else in Sri Lanka for such reasons. The Tribunal does not accept that the applicant has ever in any way been suspected of terrorist activity. It does not accept that the authorities have been searching for him or seeking to interrogate him since his departure. It does not accept that the Terrorism Investigation Unit has issued a document asking that he be arrested and interrogated or that officers visited his mother’s home.

   193. It may be that the applicant’s father has worked as a fisherman in Mullaitivu in the north. However, given the applicant’s lack of credibility in relation to this matter, the Tribunal does not accept that the applicant’s father disappeared as claimed and that the applicant has subsequently been of adverse interest to the Sri Lankan authorities. It does not accept that the applicant’s father was suspected of assisting the LTTE and that he was abducted or disappeared as a result. It does not accept that the applicant has ever come to the adverse attention of the Sri Lankan authorities. The Tribunal notes that applicant’s claim that people from Mullaitivu came and stayed with the applicant’s father, the Tribunal does not accept that it follows that the applicant’s father may have been involved with the LTTE as the applicant has claimed. Although the applicant’s father may have gone to Mallaitivu to fish, the Tribunal does not accept on the evidence before it that he was involved with the LTTE. The Tribunal has not accepted that the applicant’s father disappeared as claimed. It does not accept that the applicant has ever come to the adverse attention of the authorities due to his relationship with his father or for any other reason.

   194. The Tribunal notes that the applicant has given evidence that his mother is no longer living at home. It may be that, in the applicant’s absence, the applicant’s mother is now living with his sister. However, even if this is the case, for reasons set out above, the Tribunal does not accept the applicant’s claims about his problems before he left Sri Lanka and about people coming to the house. It does not accept that the applicant has been sought since his departure or that people have visited the home of given any document to his mother. The Tribunal has had regard to submissions that have been made about the applicant discussing his father with the Department and believing that he had indicated an interest in tracing. The Tribunal accepts that he discussed his father with the Department. It accepts that he claimed to the Department that his father was missing and it is possible that there was some discussion about tracing. The Tribunal has considered the submissions in this regard. Nevertheless, having carefully considered all the evidence, the Tribunal finds, for the reasons set out above, that the applicant’s claims about his father’s abduction and disappearance are lacking in credibility.

   195. In making findings in relation to credibility, the Tribunal has had regard to the submissions in relation to credibility and factors such as the applicant’s education. It has had regard to submissions to the effect that the applicant was an inarticulate witness. The Tribunal has had regard to evidence concerning the applicant’s schooling and accepts his evidence that he did not study beyond Year 10. It considered that the applicant gave evidence at considerable length at hearing before the Tribunal. Relevant issued were raised with him at hearing as a matter of fairness. The Tribunal has carefully considered the applicant’s evidence in its entirety. It has found that aspects of the applicant’s claims lack credibility on their face. To the extent that the Tribunal has relied on inconsistencies in the applicant’s claims, the applicant himself has effectively conceded that he did give inconsistent evidence. In coming to its findings on credibility, the Tribunal has carefully considered the applicant’s evidence in its entirety and had regard to all relevant factors.

Grounds for Application

1. The application, on its face, contains only one ground framed as follows:

   1. The decision of the Tribunal:

   (a)     is affected by an error of law; and

   (b)     denied the applicant procedural fairness.

2. It is difficult to see that the applicant was denied procedural fairness in circumstances where he had three separate hearings before the Tribunal.  It is not apparent that the Tribunal made an error of law, reading the decision on its face.

3. When the matter was called on for hearing before me the applicant appeared unrepresented.  He stated that his legal adviser had drawn his grounds of appeal, but as of last week he no longer had a lawyer.  The applicant did not provide any evidence that he in fact had a lawyer, or details with respect to this application in the Federal Circuit Court of Australia.  Nor did the applicant explain why nothing had been filed in accordance with the previous directions that had been made by the Registrar.

4. The applicant explained that because he had three hearings before the Tribunal he became confused, and suggested that on the first occasion the interpretation of what he said was inaccurate.  He said that because the Tribunal reconvened on a number of occasions he became confused about the evidence that he gave.

5. There is no evidence before me as to the quality of the interpretation by the interpreter in the first hearing, and therefore no basis upon which I can make a finding that the interpreter did not accurately and appropriately interpret what was said.  The fact that a person may give differing accounts when a hearing is reconvened is a relevant matter for the Tribunal to consider, and is not of itself a basis upon which one could ordinarily mount an argument of procedural unfairness or error of law.

6. Out of an abundance of caution I made directions giving leave to the applicant to file and serve further written submissions within 14 days, with a similar opportunity to the first respondent to file any further written submission within 21 days, and thereafter each party an option to request a further opportunity to make oral submissions, within seven days of the respondent’s submissions, if the applicant in fact filed any written submissions in this case.

7. That time has now long passed and no further submissions on behalf of the applicant have been filed.

8. I find that the application should be dismissed as this applicant has not made out a ground, nor sought to make any further submissions.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  14 October 2014