MZZSE v Minister for Immigration
[2014] FCCA 920
•24 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZSE v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 920 |
| Catchwords: MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AA(1), 36(2)(aa), 424A, 424A(3)(a) Immigrants and Emigrants Act 1948 (Sri Lanka) |
| MZZPL v Minister for Immigration and Border Protection & Anor [2014] FCA 110 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 |
| Applicant: | MZZSE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1454 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 24 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 24 April 2014 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application filed on 6 September 2013 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1454 of 2013
| MZZSE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited ex tempore reasons)
These proceedings commenced with the Applicant filing an Application for judicial review on 6 September 2013. The Applicant swore and filed an Affidavit in support of his Application on 6 September 2013. The grounds of the Application are as follows:-
“1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
2. The decision of the Tribunal failed to accord the applicant procedural fairness.
PARTICULARS
a. The Tribunal did not put to the applicant for written comment adverse “country information” and “newspaper reports” regarding the issue with fishing passes after January 2012 in Sri Lanka. This is reinforced by the fact that the applicant on a number of occasions (para 49 of decision) stated that he did not understand the information raised by the tribunal about being denied a fishing pass. The tribunal hearing was then adjourned to another date, and on that date the Tribunal again raised “further information” about fishing passes.
b. The Tribunal failed to deal with an integer of the claim, as to whether or not there was a well founded fear of persecution based on the applicant’s membership of an alleged particular social group, namely, young Tamil males from the north west of Sri Lanka. In particular, whilst the tribunal has considered the heightened risk profile arising from being a Tamil from the north west, both the applicant’s age, gender and fact he was a boat person did not receive consideration in the context of his being a member of a particular social group.
c. The Tribunal has failed to provide to the applicant for his consideration and comment those aspects of country information which related to pro Government (non state) paramilitary groups. The applicant would be at a heightened risk, given he would be a returned asylum seeker and it could be imputed that he was returning with cash.
d. The Tribunal did not put to the applicant for written comment all adverse “country information” regarding the situation for failed asylum seeker/returnee Tamils in Sri Lanka. The tribunal refers to such material from paragraphs 128-139, and they are very detailed reports which in fairness to the applicant should have been provided in written form, so that the applicant and his representative would have had a reasonable period of time to digest such information and then make submissions in response.
e. The tribunal has referred to evidence about the state of prisons in Sri Lanka and the treatment in gaols which would indicate that there are substantial grounds that the applicant will suffer significant harm, especially given that in the past he had already spent time in a gaol.”
The Applicant’s Affidavit in support of the Application essentially restates the grounds of the Application, as do his Contentions of Fact and Law filed 23 January 2014, and on which he relies.
The First Respondent filed a Response to the Application on 20 September 2013, seeking that the Application be dismissed and that the Applicant pay the First Respondent’s costs of the proceedings. A Court Book was filed in the proceedings on 25 November 2013, and its contents are evidence in the proceedings before me. The First Respondent filed Contentions of Fact and Law on 6 March 2014 and relies upon those contentions.
The application for judicial review is of a decision of the Second Respondent (‘the Tribunal’) dated 14 August 2013. In that decision the Tribunal affirmed an earlier decision of a delegate of the First Respondent (‘the delegate’), dated 15 October 2012, not to grant the Applicant a Protection (Class XA) Subclass 866 visa. By his application the Applicant sought orders to, effectively, quash the Tribunal’s decision and remit the application for review to the Tribunal for determination according to law. As correctly submitted by the First Respondent, there are, in essence, two grounds to the application and five underlying particulars. The grounds assert jurisdictional error and a denial of procedural fairness. The particulars, as submitted by the First Respondent are summarised as (at paragraphs 34 to 37 of its Contentions of Fact and Law filed 6 May 2014):-
“34. Particulars (a) and (d): The Tribunal failed to put to the Applicant for written comment adverse country information about the situation in Sri Lank post‑January 2012 apropos ‘fishing passes’, and about the situation for failed asylum seekers/return Tamils in Sri Lanka.
35. Particular (b): The Tribunal failed to consider an integer of a claim, and erred by not considering the Applicant’s age, gender and the fact he was a boat person in assessing the risk arising from his being a member of a particular social group – ‘young Tamil males from the north west of Sri Lanka’.
36. Particular (c): The Tribunal failed to provide the Applicant with the opportunity to comment on aspects of country information which related to pro‑Government (non‑state) paramilitary groups. In addition, the Applicant would be at a heightened risk, given he would be a returned asylum seeker and it could be imputed that he was returning with cash.
37. Particular (e): The Tribunal had regard to evidence about the state of prisons in Sri Lanka and the treatment in gaols, which would indicate s 36(2)(aa) of the Act [Migration Act 1958 (Cth)] was engaged, especially given that in the past he had already spent time in gaol.”
History
The Applicant is a citizen of Sri Lanka and arrived at Christmas Island on 17 May 2012. He was an unauthorised maritime arrival under s.5AA(1) of the Migration Act 1958 (Cth) (‘the Act’). In his oral submissions this day, the Applicant sought an adjournment of the proceedings on the basis of proceedings instituted in the High Court of Australia, Plaintiff S297/2013. Those proceedings related to the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013, which came into effect on 14 December 2013 (‘the UMA Regulation’). The UMA Regulation was subject to legal challenge in the aforementioned proceedings instituted in the High Court. It was also subject to a Motion to Disallow in the Senate, which was successful. Following the disallowance in the Senate of the UMA Regulation, the proceedings instituted in the High Court were withdrawn. There is no basis for an adjournment on this ground.
On 6 August 2012, the Applicant applied for a Protection (Class XA) Subclass 866 visa (‘protection visa’). On 15 October 2012 the delegate refused to grant a protection visa, and on 20 November 2012 the Applicant applied for review to the Tribunal of the delegate’s decision. On 4 January 2013 the Applicant was invited to appear at a hearing before the Tribunal, scheduled for 18 February 2013, to give evidence and present arguments. The Applicant appeared at that hearing via video conference, and was assisted by an interpreter in the Tamil and English languages, and by his migration agent.
Thereafter, the hearing was adjourned and resumed on 13 August 2013. Again, the Tribunal invited the Applicant to appear, which he did via video conference. Included in that invitation to the resumed hearing was a draft of the portion of the Applicant’s evidence at the hearing on 18 February 2013, which was not recorded, for his comment and/or correction. Nothing particular arose in respect of this, and the draft was essentially accurate. On 14 August 2013 the Tribunal affirmed the delegate’s decision not to grant the Applicant a protection visa.
The Applicant’s factual claims in support of his application for a protection visa appear in a written statement dated 6 August 2012. He claimed to have departed Sri Lanka in the manner in which he did for two reasons. Firstly, the Applicant experienced problems with the Sri Lankan Navy, who made it impossible from January 2012 for the Applicant to obtain an identity card that would enable him to get a permit to work as a fisherman. Secondly, the Applicant was involved in an incident in September 2010 where the Sri Lankan Army attacked him and some friends in a playground (‘the incident’).
The Applicant claimed that, two days after the incident, he was arrested and detained by the Sri Lankan Police for 28 days. He also claimed to have been taken before a court in Sri Lanka and released, but required thereafter to attend a Criminal Investigation Department (‘CID’) office once a month in Colombo to sign a register. He claimed the matter was extant before the court. The Applicant also claimed that, since departing Sri Lanka, the Sri Lankan Army have visited his father’s home to further investigate the incident. The Applicant also claimed that if he returns to Sri Lanka he will be harmed by the CID, under suspicion that he has links to the LTTE, and because he did not attend the most recent hearing of his court case or continue to sign the register.
Tribunal’s Findings and Reasons
In paragraph 98 of the Decision Record of the Tribunal dated 14 August 2014 (‘the Decision Record’) the Tribunal set out the issue in the case to be whether, either singularly or cumulatively, because of:-
a)past events;
b)grounds under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Convention’) including:-
i)Tamil race;
ii)membership of the particular social groups:
1. Sri Lankan Tamils;
2. Tamils from North Western Sri Lanka;
iii)actual and imputed political opinion arising from his race and former residence in a predominantly Tamil region;
c)his claim for asylum in Australia.
d)his unlawful departure from Sri Lanka.
the applicant satisfies either the refugee criterion or the complementary protection criterion.
The Tribunal assessed the Applicant to be “generally untruthful” in relation to his evidence and claims. The Tribunal said (at paragraph 99 of the Decision Record):-
“… the Applicant has presented a blend of small part truth and large part untruth in his evidence and claims…”
The Tribunal accepted that the incident had occurred, and that the Applicant had subsequently been arrested and detained for 28 days in September 2010. The Tribunal accepted that occurred as a result of an altercation a few days prior, between local Tamil boys in Udappu and Sri Lankan Army personnel. The Tribunal did not accept, however, that the Applicant had been charged upon his release from detention, or that he was subject to any ongoing court case, or was subject to any ongoing reporting conditions in Sri Lanka. This was because of the inconsistencies manifest in the Applicant’s evidence. The Tribunal noted there was no documentary evidence put, in support of such claim, and that the Applicant had been hesitant in recalling the reporting requirements. The Tribunal found, further, it was implausible that the Applicant would not know the reason why he was subject to reporting requirements. The Tribunal also considered that the Applicant’s evidence as to where he had had to report was inconsistent, and caused the Tribunal to “doubt further his truthfulness”. The Tribunal stated at paragraph 102 of the Decision Record that it had formed the view the Applicant had fabricated the claims of him being subject to a reporting requirement and/or an ongoing case at which he had appeared on a number of occasions in Sri Lanka. The Tribunal found that the Applicant had not ever been subject to a court case, attended court in Colombo or otherwise attended the CID or police to “report” as a result of what happened in September 2010 or otherwise.
The Tribunal also rejected the claim that the Applicant had been detained in September 2010 because of any suspicion of association with the Liberation Tigers of Tamil Eelam (‘LTTE’) arising from his “generic claim that all Tamil youth are so suspected”. The Tribunal considered the Applicant was not of any ongoing interest to the Sri Lankan Army, the CID, or the police. The Tribunal also rejected as “opportunistic and dishonest” the Applicant’s (late made claim) that he would be suspected of being involved with the LTTE arising from his father being suspected of providing food and financial support to the LTTE. The Tribunal considered such claim was made only after the Tribunal member explained to the Applicant the categories of person who may be perceived to have LTTE association as set out in the United Nations High Commissioner for Refugees Guidelines (‘the UNHCR Guidelines’). The Applicant’s conduct informed the Tribunal’s overall assessment of his credibility adversely.
The Tribunal did not consider that the Applicant’s interaction with the Sri Lankan Navy rose to a level of either serious or significant harm. Nor was his interaction as a bus passenger experiencing low-level discrimination and harassment from the Sri Lankan military or police, properly characterised as serious harm or significant harm. The Tribunal considered them random events. The Tribunal rejected the Applicant’s claim that his father had been visited by the Sri Lankan Army after he had departed Sri Lanka to further investigate the incident and demand a bribe. The Tribunal did not accept that claim based upon the Tribunal’s (at paragraph 109 of the Decision Record):-
“… overall assessment of the applicant’s poor credibility and because I find it implausible that over 18 months after the incident in Udappu there would be an ongoing investigation by the Sri Lankan Army. I am of the view that the applicant has fabricated this claim in an attempt to make what happened in 2010 appear to have continuing import or relevance. I am of the view that the 2010 incident in Udappu and the applicant’s subsequent punishment by being detained are concluded and are of no further interest to the Sri Lankan Army or other agencies of the Government of Sri Lanka.”
The Tribunal accepted that the Applicant on one occasion in the past was detained for a total period of 28 days, and may have been mistreated by Sri Lankan CID personnel, and that may properly be characterised as a past incident of persecution for reason of his Tamil ethnicity and/or imputed political opinion of being perceived not to respect the authority of the Sri Lankan Army. The Tribunal, however, found that the Applicant was of no ongoing interest to agents of the government of Sri Lanka or otherwise because of the 2010 incident. He had had no further interaction with the agents of the Government of Sri Lanka related to the incident.
The Tribunal found there was not a real chance the Applicant would come to the attention of agents of the Government of Sri Lanka or suffer any form of harm at their hands, now or in the reasonably foreseeable future, because of that event.
The Tribunal found, based upon country information, that the restrictions imposed by the Sri Lankan Navy on fishing passes was no longer operational in Sri Lanka, a matter which had been put to the Applicant in the Tribunal hearing. The Tribunal found the Sri Lankan Navy would not inhibit the Applicant’s ability to earn a living from fishing, and that the chance of (at paragraph 111 of the Decision Record):-
“… further or more serious harm at the hands of the Sri Lankan Navy while fishing is remote…”
and did not rise to a real chance of persecution now or in the reasonably foreseeable future.
The Tribunal concluded that the Applicant did not have a well-founded fear of persecution for any Convention reason at the hands of government agents in Sri Lanka or otherwise because of his past in Sri Lanka. The Tribunal also concluded there were no substantial grounds for believing that there was a real risk the Applicant would experience significant harm at the hands of the government agents in Sri Lanka or otherwise because of his past in Sri Lanka, as a necessary and foreseeable consequence of his removal to Sri Lanka.
The Tribunal then considered whether the Applicant would face serious or significant harm arising from his Tamil race and membership of the particular social groups, or his imputed political opinion and perceived association with the LTTE. The Tribunal had regard to the UNHCR Guidelines about the risks for Sri Lankans with certain attributes. The Tribunal concluded the Applicant had no profile or characteristic of note by reference to those guidelines.
The categories of persons who may be suspected by the regime in Sri Lanka, according to the UNHCR Guidelines, and accordingly at risk of harm were explained to the Applicant during the resumed hearing.
The Tribunal noted that the country information tended to indicate that Tamil returnees to Sri Lanka had been harmed because of (at paragraph 120 of the Decision Record):-
“.. some sort of activity or have some past history that brings them within one of the groups that the UNHCR Guidelines suggests are at risk.”
The Tribunal regarded the UNHCR Guidelines as recent and authoritative information which did not suggest that failed asylum seekers or returnees from the West were a group in need of international protection. The Tribunal said (at paragraph 121 of the Decision Record):-
“I do not accept, as remote and far-fetched based on the UNHCR guidelines, 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 because:
a. his Tamil ethnicity; and/or
b. his membership of the particular social groups posited being Sri Lankan Tamils or Tamils from North Western Sri Lanka
c. imputed political opinion arising from his race, place of origin and/or his former residence in a predominantly Tamil region; and/or
d. he has sought asylum in Australia either as a member of any particular social group (in any permutation or combination) of ‘failed asylum seeker’ and/or ‘young male Tamil returnee who has unsuccessfully sought asylum in the West and/or who has left Sri Lanka unlawfully’ and/or as a result of any “political opinion imputed to him for having done so;
either singularly or in combination.”
The Tribunal concluded that the Applicant did not have a well-founded fear of persecution, now or in the reasonable foreseeable future, if he were to return to Sri Lanka for reason of any of those claims, and nor did the Tribunal find that the claims gave rise to substantial grounds for believing that as a necessary and foreseeable consequence of his removal from Australia to Sri Lanka there was a real risk that the Applicant would suffer significant harm.
The Tribunal then considered whether the Applicant would face serious or significant harm arising from his unlawful departure from Sri Lanka. It gave extensive consideration to country information about the Immigrants and Emigrants Act 1948 (Sri Lanka) (‘the I & E Act’) and offences under that law; what might happen to the Applicant upon return to Sri Lanka at the airport; whether the Applicant would be subject to bail and remand in Negombo Prison Remand Unit until bail was granted; sentencing discretions; the number of cases where returnees had been fined; and prison conditions.
The Tribunal concluded that the I & E Act applied to all persons who departed Sri Lanka unlawfully, regardless of their ethnicity, and that the terms of the law did not have a discriminatory intent or impact, and the law was not applied selectively or in a discriminatory manner for a Convention reason.
The Tribunal then considered whether the Applicant being held in remand for a short period from between one day to several days if charged with any offence under the I & E Act constituted significant harm. Noting the prison conditions in Sri Lanka, the Tribunal concluded a short period of remand would not constitute significant harm. The Tribunal also concluded that either a conviction or a fine under the I & E Act, which the Tribunal considered the Applicant could pay if imposed, constituted significant harm. The Tribunal also expressly rejected the possibility that the Applicant would face ongoing imprisonment.
The Tribunal determined the Applicant would not face a real chance of serious or significant harm as a consequence of being a failed asylum seeker; returnee; a person who has departed Sri Lanka illegally; and/or a returnee who may be charged with having improperly departed Sri Lanka.
The Tribunal then gave cumulative consideration to the Applicant’s claims and concluded the Applicant would not face a real chance of serious harm now or in the reasonably foreseeable future for any Convention reason and, therefore, did not have a well-founded fear of persecution. Similarly, the Tribunal concluded that cumulatively there were not substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, that there was a real risk that the Applicant would suffer significant harm.
Consideration:
The submissions made by Counsel for the First Respondent are accepted and accurate. The Applicant’s application will be dismissed and costs shall follow the event. The Applicant’s complaints about the Tribunal’s use of country information do not support a finding of jurisdictional error. The Tribunal’s reference to country information was information of a type to which s.424A(3)(a) of the Act applies. (MZZPL v Minister for Immigration and Border Protection & Anor [2014] FCA 110 at [36] per Ross J).
In any event, the Tribunal gave clear particulars of the information it relied upon to the Applicant and invited the Applicant to comment on, or respond to the information under s.424A of the Act in the course of the Tribunal hearing. The Applicant also had notice of the existence of some of the country information referred to by the Tribunal, as it had been referred to in the delegate’s decision dated 15 October 2012. This included information pertaining to the issue of fishing passes. There is no merit in this part of the Applicant’s application.
The Applicant’s complaint about the finding made by the Tribunal as to his membership of the particular social group “young Tamil males from North West Sri Lanka” is also without merit. The Tribunal’s finding at paragraph 121 of the Decision Record, as set out above, is dispositive of particular social group claims made by the Applicant. As submitted by the First Respondent, the Tribunal considered “singularly or in combination” whether there was a real chance the Applicant could suffer serious harm or significant harm because of his claimed membership of various particular social groups, and concluded that he would not.
The Applicant complained to the Tribunal that he would be at a heightened risk of harm perpetrated by paramilitary groups, given he would be a returned asylum seeker and it could be imputed that he was returning with cash. He claims to have had no opportunity to comment on country information as to these matters. The Applicant did not expressly make such a claim in his written or oral evidence before the Tribunal. The Tribunal is not required to consider a case that is not expressly made or clearly arising on the materials before it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 at [58] per Black CJ, French and Selway JJ.) Further, s.424A(3)(a) of the Act is applicable in respect of the country information used by the Tribunal.
In the submissions made to the delegate by the Applicant’s representative, dated 30 August 2012, country information was cited for the proposition that Tamil men would be the victims of serious criminal activities directed at Tamils and perpetrated with impunity by paramilitary groups. The Tribunal noted the country information in the Applicant’s submission but placed greater weight on the UNHCR Guidelines that indicated the categories of person that may be at risk of harm. The Tribunal found, as set out at paragraph 118 of the Decision Record:-
“[The Tribunal is] not of the view that the applicant falls within any of the risk categories set out in the UNHCR Guidelines or has any other profile or characteristics such that he would be systematically and discriminatorily targeted for serious harm, or which gives risk to substantial grounds for believing that there is a real risk he will suffer significant harm as a necessary and foreseeable consequence of his return to Sri Lanka.”
In conclusion, the findings of fact made by the Tribunal, including the Tribunal’s findings as to the Applicant being remanded for a short period of time, were all open to the Tribunal on the evidence before it. Such findings of fact are a matter for the Tribunal and not this Court. The Tribunal’s findings of fact do not demonstrate jurisdictional error, such that the Applicant could succeed in this application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 7 May 2014
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