MZZUG v Minister for Immigration
[2014] FCCA 1588
•18 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZUG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1588 |
| Catchwords: MIGRATION – Application for review of decision of the Refugee Review Tribunal – new grounds raised in the course of proceedings – matters raised not before Tribunal or deal with merits – claims with respect to problems with translation not supported by evidence – no error on the part of the Tribunal found – application dismissed. |
| Legislation: Migration Act 1958 (Cth), Part 7, Division 4, ss.422B, 424A |
| Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 MZYPY v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 810 SZNIH v Minister for Immigration and Citizenship [2009] FCA 1374 SZTXY v Minister for Immigration and Border Protection & Anor and SZTXZ v Minister for Immigration and Border Protection & Anor and SZTZJ v Minister for Immigration and Border Protection s& Anor [2014] FCCA 841 |
| First Applicant: | MZZUG |
| Second Applicant: | MZZUH |
| Third Applicant: | MZZUI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1705 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 18 June 2014 |
| Date of Last Submission: | 18 June 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 18 June 2014 |
REPRESENTATION
| Counsel for the Applicants: | Applicants appeared in person |
| Counsel for the First Respondent: | Mr N Wood |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Application filed 14 October 2013 be dismissed.
The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $10,582.50.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1705 of 2013
| MZZUG |
First Applicant
| MZZUH |
Second Applicant
| MZZUI |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
This is an application for judicial review (“the application”) by the Applicants, who are the Husband (“First Applicant”), Wife (“Second Applicant”) (collectively “the Applicants”) and child (“Third Applicant”) of a family unit, of a decision by the Refugee Review Tribunal (“the Tribunal”) on 12 September 2013 to affirm an earlier decision of a delegate of the Minister not to grant them protection visas. The Applicants seek that that decision be quashed.
The matter first came before this Court on 13 May 2014 but was adjourned on that date because of correspondence presented by the Applicants with respect to the release of personal information concerning them by the Department of Immigration and Border Protection (“the Department”). In response to Orders made on that day by the Court, the Applicants filed submissions on 4 June 2014. Those submissions addressed other matters but did not specifically address the issue of the correspondence from the Department.
Background
The Applicants are Sri Lankan nationals. On 5 October 2012, the Applicants made application for protection visas. Both the
First Applicant and the Second Applicant made claims with respect to both the convention criteria with respect to protection and also to the complementary protection criteria.
The application made with respect to the Third Applicant was made as a member of the same family unit as the First and Second Applicant. The Third Applicant made no independent claim for protection.
The First Applicant made claims to be an ethnic Tamil who fled
Sri Lanka with his family to India when he was nine years old. He stated his family feared being killed by the Sri Lankan army. The
First Applicant stated he now fears being harmed by Sri Lankan authorities on account of:
·His Tamil ethnicity;
·His imputed support for the Liberation Tigers of Tamil Eelam (“the LTTE”); and
·On the basis that he comes from an area in Sri Lanka where the LTTE was active.
The First Applicant also claims to fear harm on the basis of his illegal departure from Sri Lanka as a child. He claimed that security in
Sri Lanka was far from satisfactory and that the area he came from was heavily militarised and many Tamils were caught in the crossfire between Sri Lankan authorities and Tamil movement groups. The
First Applicant claimed his family lost everything during the war and that he no longer holds family land in Sri Lanka and has nowhere to go. The Second Applicant’s claims were substantially similar to those of the First Applicant and it is noted that she also claimed to have fled
Sri Lanka with her family unlawfully to go to India as a child.
The Applicants’ representative, in written submissions,[1] stated that the First Applicant feared significant harm at the hands of Sri Lankan authorities on the basis of:
·His Tamil ethnicity;
·His imputed political opinion in support of the LTTE; and
·As a Tamil and a returnee from a western country.
[1] Court Book filed 16 January 2014 at pp.268-334.
At the Tribunal hearing, the First Applicant also expressed concern that they would not have identity cards on their return and questioned how they would survive until they got those cards.
The First Applicant also indicated that he wanted to submit to the Tribunal his Sri Lankan family ration card and stated that the Applicants had documents such as birth certificates and Indian family registration cards.
The Tribunal decision
In its decision,[2] the Tribunal noted that the Applicants gave evidence that was consistent and credible and accepted that what they claimed had happened to them and their families in the past did actually occur. Primarily, on the basis of relevant country information, however, the Tribunal was not satisfied that either the First Applicant or the
Second Applicant satisfied either the convention criteria or the complementary protection criteria.
[2] Ibid at pp.344-361.
With respect to the Applicants’ claims based on their Tamil ethnicity, the Tribunal found that:
·There was a generally improved situation for Tamils since the ending of the war;
·The security situation in the north and east had greatly improved; and
·There were no laws or policies discriminating against Tamils.[3]
[3] Outline of the First Respondent’s submissions filed 6 May 2014, p.3 at 10.
With respect to the Applicants’ claim based on their alleged imputed political opinion as supporters of the LTTE, the Tribunal accepted that certain Tamils suspected of links with the LTTE did face possible risk of harm. The Tribunal was not satisfied, however, that either of the Applicants would be suspected of those links, given that neither had claimed any association with the LTTE and they had both left
Sri Lanka when they were young children. The Tribunal also referred to a statement by the UNHCR that “originating from an area that was previously controlled by the LTTE does not itself result in a need for international protection”.[4]
[4] Ibid at para.11.
With respect to the Applicants’ claim based on their illegal departure from Sri Lanka, the Tribunal did not accept that there was “any more than a “remote chance” that the applicants would be charged or detained as a result of their illegal departure “given their very young age at the time of departure which was over two decades ago”.[5] With respect to the claim based on being returnees from a western country, the Tribunal found that the country information indicated that Tamil returnees from Western countries were not being mistreated for reason of being returnees or because of their race.[6]
[5] Ibid at para.12.
[6] Ibid at para 13.
With respect to the Applicants’ economic prospects on return, the Tribunal accepted that:
[T]he applicants had lost property, and that there may be fewer economic opportunities for them in the conflict-affected areas in the north and east of Sri Lanka. However, the Tribunal found that any economic hardship that the applicants might endure on their return to Sri Lanka would not be a result of systemic or discriminatory conduct leading to serious harm, or be persecution for a reason under the Convention.[7]
[7] Ibid, pp.3-4 at para.14.
Further, any delay in the Applicants establishing their Sri Lankan nationality, which might result in economic hardship, would not constitute significant harm within the meaning of the complementary protection provisions.
Application for review
The Applicants lodged an application for judicial review on
14 October 2013. That application identified two grounds of review:
1. The Refugee Review Tribunal did not afford me procedural fairness;
2. The Refugee Review Tribunal applied the wrong legal test.[8]
In the further submissions provided by the Applicants on 4 June 2014, three other grounds of review were raised.
[8] Application filed 14 October 2013 at p.3.
The first of these was that the Tribunal “failed to consider my children’s citizenship as they are stateless”.[9]
[9] Applicants’ submissions filed 4 June 2014, p.2 at No: 1.
The second of these refers to paragraph 21 and 22[10] of the Tribunal’s reasons for decision in which the Tribunal summarised the Applicants’ claims and raised further issues in relation to the merits of those claims. There is also raised in that ground some additional or recent information in relation to circumstances concerning the death of the Second Applicant’s father
[10] Court Book filed 16 January 2014 at p.348.
The third ground raises an issue with respect to the interpreting. It states:
The telephone line was not clear and we were not able to understand the actual conversation. This had created a very significant misunderstanding and omission on our verbal explanation.[11]
[11] Applicants’ submissions filed 4 June 2014, p.3 at No: 3.
The First Respondent’s submissions
The First Respondent, in submissions, dealt with both the general grounds for review and the supplementary grounds. The
First Respondent also dealt with the issue concerning the correspondence sent to the Applicants by the Department. With respect to the correspondence from the Department which gave rise to the adjournment of the proceedings on the previous occasion, the
First Respondent submits that “the events in February 2014 (when the Tribunal was functus officio) are irrelevant to - and can have no bearing upon - any issue arising in the application for judicial review of the Tribunal’s decision”.[12]
[12] First Respondent’s Supplementary Submissions filed 11 June 2014, p.2 at para.3.
The decision which is the subject of the judicial review is the decision of the Tribunal of 12 September 2013. That pre-dated, obviously, the events in February 2014. It would not have been open to the Tribunal to consider any evidence relating to, or any claims arising out of, those events as they occurred subsequent to the Tribunal issuing its reasons for decision.[13] Accordingly, the Department’s letters are irrelevant to the present proceedings and in any event do not go to any jurisdictional error by the Tribunal.
[13] Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25
With respect to the new matters raised by the Applicants, the
First Respondent submits that there are two fundamental problems with the claim by the Applicants that the children are stateless.
·First, there is only one claim with respect to any of the children of the Applicants. That application makes no claim for protection independent of the fact that the Third Applicant is a member of the same family unit as her parents. The Third Applicant expressly indicated she had no independent claims.
·Second, the Applicants gave evidence to the Tribunal that the Third Applicant was a citizen of Sri Lanka and that she became a citizen on 4 February 2005. The Applicants gave no evidence that the Third Applicant was stateless.[14]
[14] First Respondent’s Supplementary Submissions filed 11 June 2014, p.2 at para.7.
With respect to ground 2, the First Respondent submits that this amounts to a rehashing of evidence and submissions in support of the claim already considered by the Tribunal. Essentially, the Applicants are inviting the Court to engage in a review of the merits of the Tribunal’s decision, rather than identifying any particular jurisdictional error concerning the Tribunal’s decision.
With respect to the third ground of review, the Applicants claim that the telephone line during the Tribunal hearing was not clear. The Applicants have not provided any evidence to the Court concerning this. There was no evidence of any particular difficulty in the Applicants communicating with the Tribunal with the assistance of an interpreter. The Applicants have not put into evidence any transcript of the Tribunal hearing and there is nothing in the available evidence in the Court Book to indicate that there were any such communication difficulties.
The First Respondent drew the attention of the Court to a judgment of the Federal Court in SZNIH v Minister for Immigration and Citizenship [2009] FCA 1374. In that case, even with a purported transcript of the proceedings, the Federal Court was of the view that there was not an evidentiary basis for finding that the applicants were denied a hearing owing to issues of interpretation.
Second, the Applicants have not identified any particular misunderstanding or omission or any details as to the circumstances which would cause the Court to form the view that some significant misunderstanding had occurred.
With respect to the general claims, the First Respondent submits that the Tribunal considered each of the Applicants’ claims to invoke Australia’s protection by reference to the relevant provisions of the Migration Act 1958 (Cth) (“the Act”). However, the Tribunal was not satisfied that the Applicants met the criteria for a protection visa having regard to its factual findings.[15]
[15] Outline of the First Respondent’s Submissions filed 6 May 2014, p.4 at para.17.
It is not apparent that the Tribunal applied the wrong legal test in considering the Applicants’ claims.[16] The First Respondent submits there is no basis to conclude that the Tribunal failed to apply the applicable ‘real chance’ test to either the convention criteria or the complementary protection criteria. With respect to the failure of the Tribunal to refer specifically to the ‘real chance’ test as it applies to the complementary protections criteria, the First Respondent submits that the delegate refers specifically to the relevant test and that the Tribunal does not refer to any other test.
[16] Ibid at para.18.
The Court was referred to the judgment of Driver J in the matter of MZYPY v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 810. In that matter, a challenge was made to a decision on a similar issue concerning the application of the correct test when considering the complementary protections criteria. In that case, his Honour gave weight to the fact that, the officer concerned made no reference to a discredited test and, on the contrary, referred to the test as to whether there is a real risk that the applicant would suffer a significant harm. I note in that respect that the Tribunal member in this matter also refers to the test as being whether there is a ‘real risk of significant harm’.
With respect to the complementary protection criteria, the
First Respondent submits that the Tribunal did not accept the
First Applicant’s claim that the Applicants would be unable to survive in Sri Lanka and submits it was open to the Tribunal to conclude that mere economic hardship that the Applicants might endure for a limited period of time would not amount to persecution or to ‘significant harm’ within the terms of the complementary protection provisions. [17]
[17] Outline of the First Respondent’s submissions, p.4-5 at para.18.2.
The First Respondent submits it was open to the Tribunal to make the findings that it did and the Tribunal was not required to accept uncritically the Applicants’ claims. The First Respondent further submits that the Tribunal, in making its findings, did not engage in illogical or irrational reasoning that might have constituted jurisdictional error.[18]
[18] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
With respect to the claim that the Applicants were not afforded procedural fairness, the First Respondent submits that the Tribunal conformed with the requirements set out in Part 7, Division 4 of the Act.
The Tribunal invited the Applicants to attend a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Applicants attended the hearing; the Tribunal also afforded the Applicants an opportunity to provide further documents after the hearing. The country information on which the Tribunal relied was not information which attracted the provisions of s.424A of the Act. For those reasons, the First Respondent submits that the application should be dismissed.
Conclusions
This matter was adjourned on 13 May 2014, due to presentation to the Court of certain correspondence received by the Applicants with respect to the release of their personal information held by the Department. In written submissions made to the Court since the adjournment,[19] the Applicants have not raised that issue. As the
First Respondent rightly points out, the Tribunal’s decision was handed down before the release of the information concerned. It could therefore have no bearing on the Tribunal’s decision or on the scope of the Court’s jurisdiction in dealing with an application for judicial review with respect to that decision.
[19] Applicants’ submissions filed 4 June 2014.
The parties’ attention was drawn to a judgment of Judge Driver in a recent matter, SZTXY v Minister for Immigration and Border Protection [2014] FCCA 841. In that matter, issues concerning the release of information concerning other applications for refugee status were raised. Only one of the applicants in that matter could be regarded as being in a position analogous to that of the Applicants in these proceedings and I quote what Judge Driver had to say in relation to that applicant:
But for the new circumstances resulting from the unauthorised release of his personal information, SZTXZ would have exhausted the statutory processes for the consideration of his protection claims. However, as is conceded by Ms Gillam, the disclosure of his personal information is a new circumstance supporting a further consideration of his claims. The Minister could consider his circumstances either pursuant to s.417 of s.48B of the Migration Act. The Minister’s powers under those sections are personal and non compellable and are excluded from the jurisdiction of this Court.[20]
[20] [2014] FCCA 841, p.21 at para.25.
In that matter, Judge Driver did not grant the relief that was sought by SZTXZ.
In their submissions of 4 June 2014, the Applicants raised three new grounds for review.
The first concerns the status of the Third Applicant as a ‘stateless person’. This was not a matter raised with the Tribunal and could not therefore have been a factor it failed to take into account in determining the Applicants’ visa application. Second, it is contrary to the information before the Tribunal, which was that the Third Applicant became a citizen of Sri Lanka on 4 February 2005. This is stated in the application made on the Third Applicant’s behalf and found at
pages 57-63 of the Court Book.[21]
[21] Court Book filed 16 January 2014.
The Applicants were represented in the proceedings before the Tribunal and the statement that the Third Applicant was a citizen of Sri Lanka was not disputed at any stage. There are limited circumstances in which the Court can accept new evidence when conducting a judicial review. New evidence which goes to disputing findings of fact made by the Tribunal does not fall into those limited exceptions.
The second ground is a restatement of claims put to the Tribunal and upon which the Tribunal made findings. It is not submitted that the Tribunal failed to take any of those matters raised with it into account. To the extent that the submission raises new matters not put to the Tribunal, again, these are not matters to which the Court can give consideration in determining a judicial review.
The third issue raised is that the interpretation was inadequate because the telephone line was not clear. The Applicants contend that this gave rise to significant misunderstanding and omissions on verbal explanation. The Applicants had not raised this issue prior to
5 May 2014 and, even on that occasion, it was only vaguely alluded to.
The application for review was made on 14 October 2013 and directions with respect to the filing of submissions and other material were made on 4 December 2013.[22] The opportunity was there for the Applicants to put information material to the issue of interpretation before the Court at an earlier stage in these proceedings. They did not do so. There is no evidence with respect to the clarity of the interpretation and no issues concerning any difficulties about the interpretation were raised with the Tribunal. I note in this respect that there were three representatives present at the Tribunal hearing with the Applicants.
[22] Orders of Registrar Allaway dated 4 December 2013.
In addition, the Applicants have not identified any findings of fact critical to the Tribunal’s decision about which they claim a lack of clarity in the interpretation caused significant misunderstanding or omissions. The failure of the Applicants to put into evidence any transcript of the Tribunal hearings or other evidence concerning problems with the interpretation, coupled with their inability to identify any findings which caused the Tribunal to make an error in its conclusions, lead me to consider that this also has no basis.
In an application for judicial review, the Applicants must show that the Tribunal made an error of law and failed in its statutory duty. I turn now to the general claims made by the Applicants. The Applicants contend that they were denied procedural fairness. The requirements of procedural fairness, so far as they apply to the procedures of the Tribunal, are dealt with by s.422B of the Act.
The Applicants were invited to attend a hearing in the appropriate form.[23] Their representative responded to the invitation and also provided written submissions.[24] The Applicants also had representatives with them at the hearing. They were given the opportunity to provide further material after the hearing. The information relied upon by the Tribunal in reaching its conclusion was either information supplied by the Applicants themselves or country information, neither of which constitute information covered by the provisions of s.424A of the Act.
[23] Court Book filed 16 January 2014 at pp.257-258.
[24] Ibid at pp.265-334.
I am unable to see where the Tribunal failed in the requirements to afford the Applicants procedural fairness. With respect to an issue of whether the Tribunal made an error of law, the Applicants have not identified any such error. The Tribunal referred in its decision to the relevant law with respect to the refugee protection criteria and the complementary protection criteria.[25]
[25] Court Book filed 16 January 2014 at pp.345-347.
The Applicants do not specify where the Tribunal applied the wrong test with respect to either its findings as to the Applicants’ refugee status or the claim for complementary protection. I accept in this regard the submissions made by the First Respondent with respect to the way the Tribunal dealt with the latter.
The First Respondent has addressed possible areas where such an error might have occurred and has submitted, in this case, the Tribunal did not apply a wrong test and nor were its findings so irrational that a reasonable decision-maker could not have come to those same conclusions.
I am also unable to find any error of law or jurisdiction on the part of the Tribunal. For these reasons the application is dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 22 July 2014
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