MZZTD v Minister for Immigration

[2015] FCCA 745

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZTD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 745

Catchwords:
MIGRATION – Application for review of a decision by the Refugee Review Tribunal – generalised claim by the Applicant that the Refugee Review Tribunal failed to afford procedural fairness – complaint about interpretation not raised with Refugee Review Tribunal – Court satisfied that both the Refugee Review Tribunal and the Applicant were able to understand each other – no failure to afford procedural fairness – no other error of law – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Applicant: MZZTD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1558 of 2013

Judgment of: Judge Whelan

Hearing date: 19 March 2015

Date of Last Submission: 19 March 2015

Delivered at: Melbourne

Delivered on: 19 March 2015

REPRESENTATION

Counsel for the Applicant: Applicant appeared in person

Counsel for the First Respondent: Ms Gory

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The Application filed on 23 September 2013 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1558 of 2013

MZZTD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. I start by repeating what I said earlier during these proceedings –

   
   

   and Counsel for the Minister for Immigration and Border Protection (“the First Respondent”) has also referred to these matters in the submissions that she has made – that is, the role of the Court in a judicial review of a decision by the Refugee Review Tribunal

   
   

   (“the Tribunal”) is not to reconsider the merits of the Applicant’s claims. In particular, findings of fact made by the Tribunal and, particularly findings of fact which go to the credibility of the Applicant’s evidence, are matters for the Tribunal and not matters in which the Court will normally interfere. It is for the Court to determine if the Tribunal has made an error of law in that it has failed to undertake its statutory task or that it has misapplied the law: that is the approach that the Court must take to determining the matter. 

Background

1. This matter involves an application for judicial review of a decision of the Tribunal of 22 August 2013.[1] In that decision, the Tribunal affirmed a decision of the delegate of the Minister to refuse to grant the Applicant a Protection (Class XA) visa.

   [1] Court Book filed 23 January 2014, at pp.374-392.

2. The Applicant is a Sri Lankan citizen of Tamil ethnicity. He arrived in Australia on 30 June 2012 and, on 5 October 2012, he applied for a protection visa.[2] The delegate refused that application on

   
   

   21 March 2013.[3] The Applicant then applied to the Tribunal for a review of the delegate’s decision on 27 March 2013.[4] Throughout the process, the Applicant was represented by a registered migration agent. The Applicant was invited to attend a hearing by the Tribunal and he appeared before the Tribunal on 19 July 2013 to give evidence and present arguments.

   [2] Ibid, at pp.20-99.

   [3] Ibid, at pp.136-162.

   [4] Ibid, at pp.172-181.

3. Prior to that hearing, the Applicant’s migration agent made written submissions to the Tribunal on his behalf.[5] Following that hearing, further submissions were made to the Tribunal on his behalf.[6]

   
   

   The Tribunal issued its decision on 22 August 2013 and this application for review was filed on 23 September 2013.[7]

   [5] Ibid, at pp.251-298.

   [6] Ibid, at pp.330-341.

   [7] Application filed 23 September 2013.

The Tribunal’s decision

1. The Applicant made claims to have a well-founded fear of persecution on account of his:

   ·Tamil race; 

   ·Imputed political opinion as a Liberation Tigers of Tamil Eelam (“LTTE”) supporter; and

   ·

   Membership of various social groups, including being a

   
   

   failed asylum seeker, a member of his family unit and a young Tamil male.

2. The Tribunal did not accept most of what the Applicant put to the Tribunal. The Tribunal found most of what he said to be implausible and inconsistent and to raise serious concerns about his credibility.

   
   

   The Tribunal accepted the Applicant’s claim that his father may have been arrested by the army in 2007 and that he may have been beaten, but found that the Applicant’s father was released because the authorities were satisfied he was not a member or supporter of the LTTE.[8] 

   [8] Outline of the First Respondent’s Submissions filed 25 February 2015, pp.3-4 at paras.13-13.1.

3. The Tribunal did not accept that the Applicant’s family had been harassed by authorities since 2009. The Tribunal cited numerous examples of:

   ·The Applicant’s contradictory and inconsistent evidence;

   ·Where his evidence was not supported by country information; and

   ·Where his evidence was implausible.

   This included significant new evidence not presented until the Applicant’s written submissions which were received a few days before the hearing.

4. The Applicant referred to the way the Tribunal dealt with that matter in his oral submissions today and attempted to give some reasons as to why he had not revealed that information until so late in the piece.

   
   

   I am satisfied that the Tribunal dealt with that issue and did so at paragraph 39 of its decision.[9] The Applicant also claimed that,

   
   

   since he had left Sri Lanka, the harassment of his father and his family had become worse, but these claims were not accepted by the Tribunal. 

   [9] Court Book filed 23 January 2014, at p.384.

5. The Tribunal also considered the Applicant’s claims based on his illegal departure from Sri Lanka and found, on the basis of country information, that the applicable Sri Lankan laws were laws of general application and would not result in treatment of the Applicant constituting serious harm or persecution should he return to Sri Lanka.

Grounds of review

1. The grounds given by the Applicant in his application for review were:

   1.  The Refugee Review Tribunal did not afford me procedural fairness.

   2.  The Refugee Review Tribunal applied the wrong legal test.[10]

   [10] Application filed 23 September 2013, at p.3.

2. The Applicant provided no written submissions but made oral submissions today. Much of what was put by the Applicant went to the issue of the failure of the Tribunal to accept his claims and a challenge to the Tribunal’s findings with respect to what might occur should he return to Sri Lanka. 

3. The only issue that might have gone to the question of procedural fairness raised by the Applicant was the issue of interpretation. It was alleged, I believe, for the first time today, that the interpreter was not interpreting properly in some parts of the proceeding before the Tribunal. There is no suggestion from the Tribunal’s decision that the Tribunal or the Applicant had significant difficulty in understanding each other with the use of the interpreter during the hearing.

4. The Applicant referred to two matters with respect to what he alleged was the interpreter not interpreting correctly. Those refer to evidence regarding an army camp in his village and to mistranslations of the words ‘village’ and ‘town’ in the interpretation of what he had said to the Tribunal. The Tribunal found the evidence concerning the army camp to be vague and confusing but, in any event, accepted that the existence of an army camp of whatever type in, or near, his village was withdrawn after the war ceased on 2009. I accept that it was not a significant and certainly not the sole matter on which the Tribunal had difficulties with the credibility of the Applicant’s evidence.

The First Respondent’s submissions

1. The First Respondent provided both written[11] and oral submissions.

   
   

   In those submissions, the First Respondent dealt with the way that the Tribunal had considered the Applicant’s claims and submitted that the Tribunal considered each of the Applicant’s claims but was not satisfied that the Applicant met the criteria for a protection visa based on its factual findings. Such findings were open to the Tribunal on the material that was before it. There was nothing to suggest that the Tribunal’s decision was illogical or irrational or that there was no evidence to support it. 

   [11] Outline of the First Respondent’s Submissions filed 25 February 2015.

2. The First Respondent also addressed the issue of procedural fairness and noted that the Applicant:

   ·Had been invited to attend and did attend a hearing before the Tribunal;

   ·Was given an opportunity to provide evidence and elaborate on his claims; and

   ·Was able to provide detailed written submissions through his representative to the Tribunal. 

3. It is also apparent from the decision record that the Tribunal put its concerns about inconsistencies in his evidence to the Applicant and also put to him potentially adverse country information.

4. The Tribunal canvassed each issue with the Applicant at the hearing and he was, therefore, on notice with respect to his evidence and the question of the credibility of that evidence, and he was given the opportunity to address those matters in submissions after the hearing. 

Conclusions

1. The Applicant in these proceedings does not speak English.

   
   

   The grounds in his application were very general in nature and were not supported by any particulars. 

2. The Applicant has been given the opportunity today to make oral submissions with respect to those grounds and has done so. In detailed submissions, the First Respondent has addressed both the issue of the Tribunal’s obligations with respect to procedural fairness and how the Tribunal met those obligations. Further, the First Respondent has addressed the process by which the Tribunal assessed the Applicant’s claims and the reasons given by the Tribunal for its findings of fact and conclusions made based on those findings. 

3. It is clear that the Applicant:

   ·Was invited to appear at a hearing; 

   ·Responded to the invitation through his representative; 

   ·Provided written submissions prior to the hearing; and

   ·Attended the hearing at which he was assisted by an interpreter.

4. It is also evident that, while there may have been some matters where there was divergence in the interpretation from what was said, from the Tribunal’s record, both the Applicant and the Tribunal had a clear understanding of what was put. 

5. There is nothing in the Court Book[12] which would suggest that:

   ·There was any complaint raised at the time; or

   ·The Applicant was unable to understand the interpreter or the interpreter was unable to understand him: in fact, the Applicant has told the Court today that they did understand each other.

   [12] Court Book filed 23 January 2014.

6. The Applicant was also given an opportunity to make post-hearing submissions and he did so.

7. In its decision, the Tribunal refers to the matters it put to the Applicant with respect to its concerns about the credibility of his evidence. It also put to the Applicant country information which might challenge evidence he had given. From a reading of that decision, I am satisfied the Applicant was afforded an opportunity to present his case and to respond to matters which might have led the Tribunal to make adverse findings with respect to his claims.

8. In paragraphs 5 to 19 of its decision,[13] the Tribunal correctly sets out the relevant law. In order to apply that law, it was necessary for the Tribunal to make factual findings. The findings of fact made by the Tribunal were open to it on the material presented. 

   [13] Ibid, at pp.375-377.

9. At paragraphs 52 to 58 of its decision,[14] the Tribunal considered,

   
   

   based on those findings, whether the Applicant met the criteria set out in the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) with respect to his application. It then went on to consider, based on those findings, whether the Applicant was a person in respect of whom Australia had protection obligations. The Tribunal’s conclusions in that respect disclose no misapplication of the relevant law.

   [14] Court Book filed 23 January 2014, at pp.388-390.

10. For these reasons, I am not satisfied that this application should succeed and it will, therefore, be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 31 March 2015