MZZTJ v Minister for Immigration

[2014] FCCA 989

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZTJ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 989

Catchwords:
MIGRATION – Refugee Review Tribunal – refusal of a protection visa – no matter of principle – application dismissed.

GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC)
Minister for Immigration & Ethnic Affairs v  Wu Shan Liang (1996) 185 CLR 259

Applicant: MZZTJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1576 of 2013

Judgment of: Judge Riethmuller

Hearing date: 15 April 2014

Date of Last Submission: 15 April 2014

Delivered at: Melbourne

Delivered on: 23 May 2014

REPRESENTATION

Counsel for the Applicant: Mr Sorensen

Solicitors for the Applicant: Mendis & Gibson Lawyers

Counsel for the Respondent: Ms Latif

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application for an extension of time to file an affidavit for judicial review be dismissed.

2. The applicant pay the first respondent’s costs, fixed at $6,646.

NOTATION:

These orders have been amended pursuant to rule 16.05(2) of the Federal Magistrates Court Rules 2001 to reflect the deletion of the order dismissing the application filed on 24 September 2014 and the amended application filed on 20 February 2014, and replaced with the order dismissing the application for an extension of time to file an affidavit for judicial review, and the order that the applicant pay the first respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1576 of 2013

MZZTJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The Applicant seeks judicial review of a decision of the Refugee Review Tribunal made on 29 July 2013 which affirmed a decision of a delegate of the First Respondent to refuse the Applicant a protection (class XA) visa.

2. The Applicant is a citizen of Sri Lanka.  He is of Tamil ethnicity and Hindu faith.  The Applicant entered Australia as an unauthorised maritime arrival on 17 May 2012 (CB 94). 

3. On 22 August 2012 the Applicant lodged his application for the protection visa and was interviewed by a delegate of the Minister (CB 1, 3-74).

4. The Applicant claimed to fear persecution on three grounds: by reason of his ethnicity; actual or imputed political opinion; and, membership of particular social groups, namely failed asylum seekers.

5. On 26 March 2013 a delegate of the First Respondent refused to grant the Applicant the Visa (CB 124-164).

6. The Applicant applied to the Tribunal for merits review of the delegate’s decision on 3 April 2013.  The case was heard on 6 June 2013.  The Applicant was assisted during the proceedings by an interpreter and a migration agent (CB 58, 60 and 128).

Tribunal’s findings

1. The Tribunal properly identified the grounds that the Applicant relied upon saying:

   24. the issues in this case are whether the applicant has a well-founded fear of persecution in Sri Lanka in the reasonably foreseeable future because of his:

   ·   Tamil race

   ·   Membership of a particular social group (PSG) – Young Tamil male from an Eastern Province

   ·   Imputed political opinion as supporter and or associate of Tamil independence and/or LTTE and anti-government

   ·   Imputed political opinion as opposed to the Karuna Group due his association with his “uncle” and because he is able to identify his uncle’s killer.

   ·   Failed Asylum seeker – imputed political opinion against the Sri Lankan government as a person who illegally departed Sri Lanka and lodged an application for asylum in Australia.

2. The Tribunal went on to address these grounds and the three categories into which they fell:

   a)imputed political opinion,

   b)ethnicity and

   c)a returned failed asylum seeker.

3. With respect to the Applicant’s claim that he may be imputed to have a particular political opinion, the tribunal concluded:

   67. The Tribunal accepts that the applicant saw the face of one of the men who he suspects was the killer and that other people witnessed the shooting, including Manoharailillai’s wife (his aunt).  The Tribunal accepts the applicant’s evidence that the murder was investigated by the police and his aunt provided a statement and was able to identify the killer.  The Tribunal accepts the applicant’s evidence at the hearing that the killer was arrested, charged and detained by the Sri Lankan authorities.

   68. However, for the reasons stated above, the Tribunal does not accept that the applicant and/or his family received threatening letters or telephone calls or that he was abducted and detained in 2008 or that there was an attempted abduction of the applicant in 2012.  The Tribunal finds that the applicant fabricated this evidence in support of his claim.

   69. The Tribunal accepts the applicant may have been arrested the SLP for not registering his residency in Negombo in 2009 and his brother-in-law may have had to pay a bribe to secure his release.  The Tribunal finds that it was a one-off incident which does not constitute serious harm.

   70. For the reasons stated above the Tribunal does not accept the applicant’s evidence that his family were extorted by the police and/or members of Karuna Group or other criminal gangs and that his brother-in-law was forced to regularly pay money because the applicant’s family is relatively wealthy or because he witnessed his “uncles” shooting in 2000.  The Tribunal finds the applicant fabricated this evidence in support of his claims. The Tribunal accepts however that the absence of serious harm in the past does not necessarily mean that a person does not face a real chance of serious harm in the future.  The relevant question for the Tribunal is whether there is a real chance the applicant would suffer serious harm in the reasonably foreseeable future.  However, having rejected the applicant’s evidence of past harm and having considered country information the Tribunal is not satisfied that applicant has a political profile that would result in him being targeted by political opponents of the UNP or criminal affiliates.  As a consequence, the Tribunal finds that the applicant does not face a real chance of serious harm for a Convention reason if he were to return to Sri Lanka now or in the foreseeable future. 

   71. Having considered the applicant’s profile and circumstances of his father’s disappearance and the death of Manoharaililla in 2000, the Tribunal is not satisfied that the applicant would be imputed with a political opinion as opposed to the government of Sri Lanka or be seen as a threat to the Karuna Group and/or the TMVP.  As such the Tribunal concludes that there is no real chance he would be imputed to have a political opinion supportive of the LTTE or opposed to the government and/or the Karuna Group if he returned to Sri Lanka now or in the reasonably foreseeable future.  The Tribunal therefore finds that his claim of fear of harm from the Sri Lankan authorities or paramilitary groups affiliated with the authorities is not well founded. 

   72. The Tribunal is not satisfied that the applicant has an adverse profile with state actors, para-military groups or any other group or individual which would attract an immediate attempt to harm or extortion if he were to return to Sri Lanka.  As a consequence, the Tribunal does not accept there is a real chance that the applicant will suffer harm in the reasonably foreseeable future by the Sri Lankan authorities or the Karuna Group.

4. With respect to the Applicant’s ethnicity, the tribunal concluded:

   73. The Tribunal notes country information (above) suggests whilst there is evidence of past significant harm inflicted on persons of Tamil ethnicity, the situation for Tamils in Sri Lanka has improved on significantly since cessation of hostilities between the Sri Lankan government and LTTE.  It also notes and accepts the conclusion of the UNHCR in its December 2012 “UNHCR Guidelines” for assessment of refugees in Sri Lanka, that there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity.  Those guidelines list a series of profiles which, whilst not intended to be exhaustive, indicates those categories of persons the UNHCR considers may need international refugee protection, depending on the individual circumstances of the case.  The Tribunal accepts and relies on those guidelines, and finds the applicant does not fall into any other the identified profile types.  It is also not satisfied there is any other evidence to support a conclusion that the applicant faces a real chance of persecution if returned to Sri Lanka now or in the reasonably foreseeable future for reason of his Tamil ethnicity alone.  The Tribunal therefore finds the applicant’s claim to fear harm on return to Sri Lanka because of his Tamil ethnicity is not well founded.

   74. Further, the Tribunal does not accept the applicant’s claim that he faces a real chance of serious harm for reasons of being a young Tamil from the east of Sri Lanka.  The UNHCR Guidelines indicates that not all Tamils from the northern and eastern parts of Sri Lanka are vulnerable to harm due to imputed links with the LTTE.  The Tribunal considers on all the country information available as to the present circumstances in Sri Lanka, that the situation has improved substantially since the cessation of hostilities in May 2009.

5. The Tribunal went on to also consider categories of persons thought to be at risk in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) but concluded that the Applicant did not fall within any of the categories identified in that decision.

6. With respect to the Applicant’s circumstances as a returned failed asylum seeker, the Tribunal considered his case not only in the limited sphere of returned asylum seeker, but whether or not that would also lead to him being imputed with a political opinion, concluding:

   90. The applicant claimed he will be imputed with political opinion as being against the Sri Lanka government for having departed and sought asylum in Australia.  Country information above refers to instances of persons returned to Sri Lanka who claim to have experienced mistreatment on return (See the Edmund Rise Centre report and the Amnesty International report of 17 June 2011) and the UNHCR continues to recognise several categories of persons whose profile may place them in need of international protection.  As found above the Tribunal does not accept the applicant is a person of interest to the Sri Lankan authorities or to the TMVP or the Karuna Group.  The Tribunal does not accept the applicant has a profile as an LTTE associate.  The Tribunal finds that the applicant has no political or criminal profile in Sri Lanka.  The Tribunal recognises there are conflicting reports about the treatment of returnees who departed illegally on return to Sri Lanka.  It also appears that claims by some organisations that Tamils returned to Sri Lanka may be suspected of having actual or imputed LTTE links are exaggerated.  These reports were also criticized in a recent guidance decision of the UK Upper Tribunal.  In this case however, after considering the country information available, including information referred to submissions on behalf of the applicant, the Tribunal does not accept this applicant, in the absence of other risk creating factors, faces a real chance of serious harm if returned to Sri Lanka now or in the reasonably foreseeable future because he is a Tamil, an unsuccessful asylum seeker returnee, or a person who left Sri Lanka illegally.  As such it finds his fear of persecution in Sri Lanka for such reasons is not well founded.

7. The Tribunal also went on to consider the claims cumulatively, saying:

   91. Having considered the claims of the applicant both individually and cumulatively, the Tribunal is not satisfied he has a well-founded fear of persecution for reason of his own (actual or imputed) political opinion, his Tamil ethnicity, membership of a particular social group, or any other Convention reason if returned to Sri Lanka now or in the reasonably foreseeable future.  It is therefore not satisfied he is a person to whom Australia owes protection obligations under the Refugees Convention.  This means he does not satisfy the refugee criterion in s.36(2)(a).

8. The Tribunal then went on to consider the complementary protection provisions and found that the Applicant was not entitled to a visa on these grounds.  These matters were not the subject of the Applicant’s application before me.

Ground One

1. The Applicant in his application set out the following as his first ground:

   1. The Second Respondent failed to address the question of whether the Applicant had a well-founded fear of persecution; by virtue of the Second Respondent having not framed this question by reference to the applicable principles for determining whether a well-founded fear of persecution exists, but instead adopting principles incorporating reference to the Applicant’s father having been caught up in a general round up of Tamil men in Eastern Sri Lanka suspected of having links with the LTTE, rather than having been specifically targeted by authorities. 

2. The Applicant’s counsel explained at the hearing that the Applicant’s argument was to the effect that the finding of the Tribunal in paragraph 65 with respect to the circumstances of the Applicant’s father’s disappearance (and presumed death) indicated that the Tribunal had asked itself the wrong question in determining whether or not a well-founded fear of persecution existed. The Tribunal said in paragraph 65:

   65. The tribunal notes the applicant’s evidence that his father was not specifically targeted by the authorities but was caught up in a round-up targeting displaced Tamil men in north-western Sri Lanka suspected of having links to the LTTE.  The tribunal also notes that the applicant was a ten year old boy at the time and he admits he is not an LTTE supporter and has no in depth knowledge about the LTTE and their policies.

3. It appears to me that this is a finding of fact by the Tribunal as to the circumstances surrounding the Applicant’s father’s disappearance, and not the Tribunal applying any particular test.  It was obviously relevant to the decision that the Tribunal would ultimately have to make to determine precisely (or as precisely as the Tribunal were able to) the circumstances of the Applicant’s father’s disappearance.  The Tribunal did this in paragraph 65.  These circumstances formed part of the factual foundation for applying the test of whether or not the applicant would suffer serious harm in the reasonably foreseeable future, which the tribunal went on to do in paragraphs 70 and 71 (which are quoted above).

Ground Two

1. The applicant framed ground two as:

   2. The Second Respondent failed to address the question of whether the Applicant had a well-founded fear of persecution; by virtue of the Second Respondent having not framed this question by reference to the applicable principles for determining whether a well-founded fear of persecution exists, but instead adopting principles more narrowly confined to consideration of whether the Applicant fell into specific profile types identified by the UK Upper Tribunal (Immigration And Asylum-Seeker Chamber) Country Guidance Decision in GJ v Secretary Of State For Home Department (Post-Civil Was: Returnees) Sri Lanka GG [2013] UKUT 319 (IAC) dated 3^rd July 2013.

2. As with ground one, it appears to me that the applicant is attempting to categorise what is in effect fact-finding as the Tribunal asking itself the wrong question.  The Tribunal’s reference to the decision of the Upper Tribunal and its use of it was as follows:

   75. The Tribunal has also had regard to the UK Upper Tribunal (Immigration and Asylum Chamber) country guidance in GJ v Secretary of State for the Home Department (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC) dated 3 July 2013.  Although not binding on the Tribunal, the guidance notes provide another source of relevant country information.  Specifically the guidance notes identify the following categories of persons at real risk of persecution or serious harm on return to Sri Lanka.

   a)  Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka.

   b)   Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government.

   c)    Individuals who have given evidence to the Lessons Leaned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at risk of adverse attention or persecution on return as potential or actual was crimes witnesses.

   d)   A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant.  Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.

   76.  The determination confirms that the focus of the Sri Lankan government’s concern has changed since the civil war ended in May 2009. The LTTE in Sri Lanka itself is a spent force and there have been no terrorist incidents since the end of the civil war.  The government’s present objective is to identify Tamil activists in the diaspora who are working for Tamil separatism and to destabilise the unitary Sri Lankan state enshrined in Amendment 6(1) to the Sri Lankan Constitution in 1983, which prohibits the ‘violation of territorial integrity’ of Sri Lanka.  Its focus is on preventing both (a) the resurgence of the LTTE or any similar Tamil separatist organisation and (b) the revival of the civil war within Sri Lanka.

   77. Having considered the applicant’s claims and evidence the Tribunal finds that the applicant does not fall into any of the identified profile types identified by the Upper Tribunal.

3. Having rejected the Applicant’s claims to fear harm on the general basis that he was a young Tamil from an eastern province (at paragraph 73, set out above), the Tribunal went on to consider the Upper Tribunal decision as another source of country information. This indicated that various categories of people may be at risk, and therefore addressed whether or not the Applicant fell within those categories.

4. For the same reason that the Applicant cannot succeed on the first ground, I am of the view that the Applicant cannot succeed on the second ground.

Other arguments

1. Whilst not raised by the Applicant, another argument that appears available in this case is whether or not the Tribunal has applied the correct test when in paragraph 72 the Tribunal member considered whether or not the Applicant had an adverse profile such as “would attract an immediate attempted harm or extortion” followed by the conclusion “as a consequence the tribunal does not accept there is a real chance the applicant will suffer harm in the reasonably foreseeable future …”

2. It would be a clear error to decide the question of whether or not there is a real chance that a person would suffer harm in the reasonably foreseeable future simply by reference to whether or not there was a risk of an immediate attempt to harm the person or extort them.  Reading paragraph 72 on its own raises a prima facie case that the Tribunal may have applied an incorrect test.

1. However, when addressing the facts and circumstances that the Applicant raised in this case in paragraphs 70 and 71, it is clear that the Tribunal did apply the correct test of considering the reasonably foreseeable future.  In paras.70 and 71 the Tribunal specifically made reference to either the reasonably foreseeable future or foreseeable future on three occasions.  Importantly the Tribunal ultimately found that the Applicant’s claim to fear harm from Sri Lankan authorities or paramilitary groups affiliated with them was “not well founded” (at the end of paragraph 71). 

2. I am mindful of the importance of reading a Tribunal decision fairly and as a whole, as Kirby J said in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 [at 24]:

   The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.

3. When one reads this decision as a whole it appears clear that the tribunal have applied the correct test, that paragraph 72 is an example of infelicitous language and not representative of the actual consideration that the Tribunal made to the case in paragraphs 70 and 71.

4. In the circumstances I therefore find no merit in the Applicant’s grounds or arguments.

Extension of time

1. The circumstances of this case are that the Applicant filed his application out of time, and would need an extension of time before he had a valid application before the court.  I have heard the substantive argument and I am not persuaded that he has an arguable case on the grounds that he has raised, nor on the issue related to paragraph 72.  For these reasons there is no utility in granting an extension of time.

2. Should I be wrong with respect to the extension of time, I am nonetheless of the view that the Applicant has not shown grounds that would entitle him to relief on the basis of jurisdictional error and I would have dismissed his application in any event.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 23 May 2014