MZZTC v Minister for Immigration
[2015] FCCA 2321
•12 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZTC v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2321 |
| Catchwords: MIGRATION – Refugee Review Tribunal – protection visa – natural justice – correct legal test. |
| Legislation: Migration Act 1958 Immigrants and Emigrants Act (Sri Lanka) |
| Applicant: | MZZTC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1549 of 2013 |
| Judgment of: | Judge Riley |
| Hearing date: | 12 August 2015 |
| Date of last submission: | 12 August 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 12 August 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: | Bromley Hornsby |
| Solicitors for the first respondent: | Sparke Helmore |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Sparke Helmore |
ORDERS
The name of the second respondent be changed to the Administrative Appeals Tribunal.
The application filed on 20 September 2014 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1549 of 2013
| MZZTC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from the transcript)
This is an application for review of a decision of the Refugee Review Tribunal. The applicant is a citizen of Sri Lanka who is of the Tamil ethnicity. He arrived in Australia on 11 May 2012 as an irregular maritime arrival. He applied for a protection visa on 4 August 2012. The applicant was assisted by a migration agent. A delegate of the Minister refused the application on 19 September 2012. The applicant then applied to the Tribunal for review. The applicant was, again, assisted by a migration agent. The Tribunal rejected the application. The applicant then applied to this court.
The applicant claimed to fear harm in Sri Lanka because of his Tamil ethnicity, his imputed political opinion of support for the Liberation Tigers of Tamil Eelam and his membership of particular social groups consisting of Sri Lankan Tamils, Tamils from the north or east of Sri Lanka, people who had departed illegally and people who were not successful asylum seekers. The applicant said that he had grown up in Vavuniya and Jaffna. He said that he left Sri Lanka in 1990 with his family and lived in a refugee camp in India until April 2012, when he left for Australia.
The applicant said that he feared he would be questioned by the authorities as he came from an area of Sri Lanka that had been under LTTE control. He claimed that students from the school he had attended had been recruited by the LTTE. He said that the LTTE trained people in India as well, and he had lived there. He said the authorities did not protect Tamils, and he would face harm because he did not have an identity card or speak Sinhalese.
The Tribunal conducted two hearings. Towards the end of the first hearing, the applicant also claimed that he had a cousin who was a captain in the LTTE. He said the cousin had been brought up as his brother. He said that he had not heard from his cousin since 1990 and believed him to be dead. The applicant said that he feared harm by reason of his familial connection with his cousin.
The Tribunal accepted that the applicant was born in Vavuniya and lived as a refugee in India from 1990 until April 2012. The Tribunal noted country information to the effect that people who had been permitted to stay in India after fleeing Sri Lanka had no right of return if they left India illegally. The Tribunal determined that the applicant’s country of reference was Sri Lanka.
The Tribunal did not accept that the applicant’s cousin was a captain in the LTTE. The Tribunal set out detailed reasons for rejecting that claim at paragraphs 25 to 28 of its reasons for decision, which are as follows:
25.The applicant has claimed that his cousin, who was brought up in the family as his older brother, was a captain in the LTTE. This claim was introduced late in the first Tribunal hearing. He gave a number of inconsistent reasons for not having mentioned this earlier, saying that he was threatened, that he feared being jailed himself as a member of the LTTE, that it wasn’t his direct relative, that he couldn’t get any more information while he was in the camp. Now he has been rejected and his lawyer told him just to tell the truth.
26.The applicant was unable to state his cousin’s full name with any confidence, saying that his parents gave him the name Nagarajah but in the LTTE he was known as Seelam and that he would have to ask his mother. He provided the names of his mother’s sister and her husband at the second hearing. In response to the Tribunal’s questions he said he thinks the applicant joined the LTTE around 1984 but they didn’t know for a long time; they learned in 1987 or 1988 that he had joined.
27.The applicant claimed that his cousin was a bodyguard to Mahattaya, who was second or third to Prabhakaran. The Tribunal suggested that the fact he was now claiming his cousin held such a senior position made it even harder to believe this, or that he had not mentioned it before. The applicant stated that Mahattaya is dead and they don’t know where his cousin is. Asked when his family last had contact with him he said before they went to India he saw his cousin at a sentry point. Asked what would make anyone connect him with his cousin after 22 years, the applicant said they definitely think he is no longer alive because he would have communicated with them if he was alive. Asked what would cause him a problem the applicant said because he was in a known position the Pillayan Group and Karuna Group could make a problem. Asked how they would connect him with the applicant he said people who defected from the LTTE are in the Pillayan Group and the Karuna Group; they might know his cousin. Asked how the people from the Pillayan Group and the Karuna Group would come into contact with him he said they would shoot him. Asked again how they would come into contact with him he said there are people from all over Sri Lanka in the camp in India so they could give information that a man from this family has arrived in Sri Lanka, or something like that. The Tribunal explained that it thought the chances of that happening were remote. Asked if there was anything else he wanted to say about how this would put him at risk, the applicant said his cousin was in that position and he had to kill a lot of people so maybe the people affected would pass on information.
28.As discussed with the applicant, the Tribunal has serious concerns about the credibility of the applicant’s claim in relation to his cousin/brother’s membership of the LTTE, particularly in relation to its late introduction and the very muddled, contradictory explanations offered by the applicant for why he had not mentioned this earlier. The Tribunal does not accept that if the applicant provided this information to his migration agent, he or she would have advised him not to tell DIAC. In addition, the Tribunal considers that [the] applicant’s response to questions about how he would be connected with his cousin/brother after 22 years was so illogical and implausible as to be evasive.
Furthermore, the Tribunal considered that even if the applicant’s cousin had been involved in the LTTE as claimed, it had occurred more than 22 years previously. In those circumstances, the Tribunal was not satisfied that the applicant would be in any way associated with his cousin. The Tribunal said, in paragraph 29 of its reasons for decision, the following:
29.The Tribunal does not accept that the applicant’s cousin/brother was a captain in the LTTE, or a member of the LTTE. Further, even if his cousin had been involved in the LTTE as claimed, the Tribunal is not satisfied, on the evidence before it to suggest that the applicant would in some way be associated with his cousin more than 22 years after he last had any contact with him.
The Tribunal concluded that the applicant would be in the same situation as other Tamil Sri Lankans and that there were no other factors distinguishing the applicant from others. The Tribunal accepted that the applicant’s inability to speak Sinhalese may be a disadvantage. However, the Tribunal did not consider that there was a real chance that the applicant’s inability to speak Sinhalese would result in him facing serious harm.
The Tribunal accepted that the applicant would be questioned at the airport on his return. The Tribunal also accepted that the applicant would be arrested and charged under the Immigrants and Emigrants Act (Sri Lanka). However, the Tribunal considered that the likelihood was that the applicant would be bailed and eventually fined rather than imprisoned. The Tribunal considered that there was not a real chance that the applicant would face serious harm for reasons of his illegal departure.
The Tribunal considered the particular social group claims concerning Sri Lankan Tamils and Tamils from the north or east of Sri Lanka. The Tribunal considered country information and the applicant’s evidence in this context. The Tribunal considered that the applicant did not face a real chance of persecution on this ground. The Tribunal considered that the applicant would be able to get an ID card.
The Tribunal accepted that it might be difficult for the applicant to return to Sri Lanka. However, the Tribunal considered that there was not a real chance that the applicant would face serious harm because he had been away from Sri Lanka for a long time. The Tribunal also considered the complementary protection criteria. However, it concluded that there was not a real chance that the applicant would face significant harm if he were to return to Sri Lanka. The Tribunal concluded that the applicant did not meet the criteria for a protection visa.
The application to this court appears to have been prepared without the benefit of legal assistance. It lists two grounds. The first ground is that the Tribunal did not afford the applicant procedural fairness. That ground has not been particularised. The Tribunal appears to have provided procedural fairness in accordance with the Migration Act 1958. The Tribunal conducted two hearings and put relevant country information to the applicant. The Tribunal also indicated in its reasons for decision that it raised critical issues with the applicant during the course of the hearing. In the circumstances, I am not satisfied that the Tribunal did fail to afford the applicant procedural fairness.
The second ground in the application is that the Tribunal applied the wrong legal test. This ground has not been particularised. The Tribunal set out the correct legal tests at the commencement of its reasons for decision. I am unable to detect any error in the Tribunal’s application of those tests. Consequently, I am not satisfied that the second ground is made out.
In oral submissions before the court today, the applicant said that the Tribunal had said that he had not supplied any evidence so far. However, that was not the basis upon which the Tribunal made its decision. The Tribunal rejected the applicant’s claims about his cousin because:
a.the claim was introduced late in the Tribunal’s first hearing;
b.the applicant gave inconsistent reasons for not having mentioned it earlier; and
c.he could not state his cousin’s full name with any confidence.
The Tribunal also indicated various other reasons for finding the claims to be implausible. In any event, the Tribunal said that even if the applicant’s cousin had been a captain in the LTTE, there was nothing to suggest that the applicant would be associated with him more than
22 years after their last contact.
The applicant also said to the court today that, in the initial decision, “they” said he had not proved he is a Sri Lankan Tamil. This appears to be a reference to the delegate’s decision. The delegate did, in fact, appear to accept that the applicant was a Sri Lankan Tamil. In any event, this court is not able to review the delegate’s decision.
All in all, I am not satisfied that any error in the Tribunal’s decision has been identified. I have been unable to detect any such error. Consequently, the application must be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Riley.
Associate:
Date: 26 August 2015
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