MZZUO v Minister for Immigration

[2014] FCCA 1396

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZUO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1396

Catchwords:
MIGRATION – Refugee Review Tribunal – whether the Tribunal failed to consider relevant evidence – application dismissed.

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZRKT [2013] FCA317; (2013) 212 FCR 99
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223

Applicant: MZZUO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1751 of 2013

Judgment of: Judge Riethmuller

Hearing date: 6 June 2014

Date of Last Submission: 6 June 2014

Delivered at: Melbourne

Delivered on: 6 June 2014

REPRESENTATION

Counsel for the Applicant:  Mr Fernandez

Solicitors for the Applicant: Mano Associates

Counsel for the First Respondents: Mr Hornsby

Solicitors for the First Respondents: Sparke Helmore

ORDERS

1. The application of 21 October 2013 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1751 of 2013

MZZUO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. This is an application for judicial review of a decision of the Refugee Review Tribunal made on 26 September 2013 which affirmed a decision of a delegate of the First Respondent to refuse the Applicant a protection visa.

2. The Applicant is a citizen of Sri Lanka. He is of Tamil ethnicity and Hindu faith. He claims that he was born in Mullaitivu in the North East of Sri Lanka, but has lived in Udappu in the west since the age of three.

3. The Applicant entered Australia as an unauthorised maritime arrival on 17 May 2012.

4. On the 5^th of August 2012 he lodged his application for a protection visa and was interviewed by a delegate of the Minister (CB 30).

5. The Applicant claims to fear persecution on three grounds:

   a)His race;

   b)His actual or imputed political opinions; and

   c)His membership of particular social groups, namely Sri Lankan Tamils and Tamils from the North or East of Sri Lanka, as well as failed asylum seekers.

6. On the 25^th of February 2013 a delegate of the First Respondent refused to grant the Applicant a visa.

7. The Applicant applied to the Refugee Review Tribunal for a merits review of the delegate’s decision on 13 March 2012. The case was heard in September 2012 where the Applicant was assisted during the proceedings by a migration agent and a Tamil interpreter.

8. The substance of the claims that the applicant made to the Tribunal were set out in the decision. In particular as follows:

   6. The applicant made the following statements with regard to why he left Sri Lanka:

   (a)  He has never been charged or convicted of a criminal offence. His parents and three siblings continue to reside in Udappu. He is married and has no children. He is a Tamil Hindu. He has never been issued a passport. Prior to leaving to come to Australia he has not before left Sri Lanka. He completed 13 years of education in Sri Lanka. He worked as a fisherman in Udappu from 2006. He left by boat on 30 April 2012 from Chilaw.

   (b)  The army and navy harassed him while he was fishing, which made fishing ‘almost impossible’; they prevented him from working and effectively earning a living.

   (c)  In 2009 the navy established a base near Udappu. He would be regularly stopped while riding his bike and asked for ID. Sometimes the navy came to his house and asked for his ID. The authorities suspected that many of the Tamils in Udappu had been involved with the LTTE during the civil war. He was also often stopped while fishing on his boat and asked for ID and to explain what he was doing. Sometimes the authorities just asked for the sake of it and other times they were serious when they asked whether he was involved with the LTTE.

   (d)  In 2009 he was at home and the CID came and took him away in a white van to Chilaw. They questioned him because his NIC states he was born in Mullaitivu which makes them suspect he was with the LTTE. They interrogated him for two hours. They threatened him that if they found out he had been involved with the LTTE they would kidnap him and kill him. Six months later the CID again came to his house and took him to Chilaw and kept him for two hours and questioned him against about the LTTE.

   (e)  Recently in Udappu ‘grease devil’ gangs had attacked people at night in their homes; they had raped females and attacked families. The ‘grease devils’ run to the navy base when the locals tried to stop them. His neighbour’s house was attacked in min 2011; the grease devils climbed through the roof and robbed the house. Another house five houses away from his was also attacked and the woman inside was raped.

   (f)   The grease devil attacks and the harassment from the authorities cause him to be in terror and he and the other Tamil residents could not go to the police for protection because the authorities would not help them as they are the ones perpetrating the crimes.

   (g)  Because he left illegally by boat he will be arrested and interrogated on return. He is afraid he would be tortured and imprisoned because he would be a failed asylum seeker. He is afraid he would not be able to earn a living as a fisherman because of the harassment from the navy who have prevented him from working. He is also afraid of the grease devils and the corrupt officials.

   …

   16. He confirmed he started working with his father after finishing school in late 2008; they fished in Udappu in the river and the sea all year round… When asked if he had any problems fishing, he said the navy would check on them and ask for ID; they would threaten them and say they were going to take their fish. The Tribunal asked him to explain how he was threatened; he said they would take their fish. That happened about once a week and they would take all their fish. The Tribunal noted that that information was not in his written statement and it asked him why he had not previously provided that information, and in response he said he had told his lawyer and he thought it had been put in his application. When asked when it first happened, he said he was not sure but thinks it was in 2008; the last time was in 2012 but again he was not sure of the date. The Tribunal asked if he or his father had made a complaint about the navy taking their fish; in response he said there was no one they could complain to but they discussed it with their relatives. They did not report it to the fishing society or make a complaint to the navy office. When asked why they did not take any action, the applicant said that they do not speak Sinhalese and the navy would deny it and nothing would happen; he said it had happened to other people in Udappu and they had complained to the navy and nothing had happened.

   17. The applicant said that the navy sailors had hit his father; it was in about 2010 and the sailors came to them and asked for their ID and said ‘we told you Tamils not to come to town, why are you here?’ He could not understand what they actually said to them because he does not speak Sinhalese; but the sailors took their fish and hit his father with a stick. It happened while they were on the boat; the sailors did not get on their boat but hit them with a long tick from their boat. His father was hit on the arms once. He was also hit with a stick; in total he and his father were hit with the long stick on about four or five occasions. Once his arm became swollen and he could not fish for a week; neither he nor his father ever received any injuries apart from swelling; they did not receive any medical treatment and did not go to the hospital. The Tribunal noted that he did not include that information in his written statement; he said he told it to the delegate in his interview. He then said that his father was only hot on one occasion; the navy had a long stick and hit his father from their boat; the others times they only threatened to hit them. He then said that he was hit at the same time his father was and that it happened on about four or five different occasions. The Tribunal asked him if he ever suffered any injuries and he said he did not suffer any injuries but had felt pain. He said that this only happened when they went fishing in the night time, when they left at 8pm and came back at about 2 or 3am; they were harassed by the navy when they were about 3 or 4 kilometres from the shore. Most other fishermen went out at 2 or 3 am but he and his father fished earlier than them because they caught more fish at that time. The Tribunal asked if there were any restrictions on fishing at that time and he said the restrictions were only in the north and they were never told not to fish in the night time but they were told and warned not to fish in the area they were in, which is where they were hit.

   …

   20. In 2009 the CID came to his house and asked to see his NIC; they showed their ID and after they saw his they asked him to go with them to the office. His parents were home at the time and nothing happened to them. He was taken to the CID office in Chilaw and questioned in a room for about two hours; he was asked about his relatives in Mullaitivu and when his family moved to Udappu and about people coming to their home from Mullaitivu and if he had relatives involved with the LTTE or whether he had been involved. The first time this happened was in early 2009 but he could not remember exactly when. He was not harmed or threatened or asked to do anything but he was told that he was being watched and to be careful. He has no relatives or associated who are involved with the LTTE.

   21. The second time the CID came to his house was in about June or July 2009; different people came to his house and took him to the same office in Chilaw and asked him the same questions. Nothing happened to him and he was released after two hours and allowed to go by himself. That was the last contact he had with the CID. But since he has been in Australia the CID went back to his family home; it happened when he was in the detention centre. His mother told them that he had gone fishing; nothing else happened and they have not been back since. The Tribunal noted that it was not mentioned in the delegate’s decision record and as it was a significant claim it was hard to believe it would not have been mentioned in the decision if he had referred to it. In response the applicant said he thinks he told the delegate but he is not sure. The Tribunal asked if his mother told him why the CID went to their house: he said they came to talk to him and he thinks they want to talk to him because of the old things and because since 2009 some of their relatives from Mullaitivu had come to their home to visit them; he said they had not come to their house before that, except for the two times in 2009 when they spoke to him. The Tribunal put to him that it was hard to understand that the CID would have come in med-late 2012 to ask about those matters; he said he only thinks that is why they came and he does not know why they came or what their purpose is.

9. The Applicant relies upon 3 grounds in his application which are as follows:

   1. The Tribunal has failed to consider my claim as a Tamil and fell into jurisdictional error.

   2. The Tribunal has not considered the integer of my claims.

   3. The Tribunal’s decisions were infested with jurisdictional error.

10. When the matter was called on today Counsel appearing for the applicant only pressed the second ground on the basis that the first and third ground were taken up in his argument under the second ground.

11. Given that the first ground also identifies a separate basis, namely a failure to consider his claim as a Tamil it is appropriate I deal with it separately. 

Ground One

1. With respect to the claim that the Tribunal did not deal with the applicant’s claim as a Tamil, I note that the Tribunal squarely addressed this in their reasons at a number of places:

   30. The Tribunal noted that the information before it indicated that it is likely he would be taken into custody and charged and brought before a magistrate; there were no reports before the Tribunal of returnees in the recent past being harmed during that process. The Tribunal noted that information form DFAT and various media sources indicated the offence he would be charged with is a bail-able offence and that sources indicate that bail is routinely granted on a personal guarantee and a guarantee from a family member, and in his circumstances with no criminal record or involvement in people smuggling, it is likely he would be granted bail, but that he might be held on remand for a few days at most. When asked to comment on this information the applicant said that the GoSL might say that is what is happening but the real situation is different; the media does not tell the truth; he said he might be on remand for a few days or year, no one will know what will happen. The Tribunal notes that the independent information did not indicate a person with his circumstances would spend more than a few days on reman. He said he has a past CID profile so they would keep him there.

   …

   33. The Tribunal noted that source indicated that the conditions of remand cells were crowded, dirty and generally very poor, however, the information before the tribunal did not indicate that Tamil returnees in the recent past had been harmed while on reman. When asked to comment on the information and the prospect of being held on remand for a few days in terrible conditions the applicant said that he does not accept that information; a few months ago he read that 10 people had died in priosn; there is no security in prison especially for Tamils; it’s not just LTTE cadres who are tortured in prison, all Tamils are tortured; the media tell lies about this information and it is biased in favour of the GoSL; the GoSL does it on purpose to punish Tamils; he cannot go back and live there; he does not know what punishment he will get but he will be punished.

   …

   35. The Tribunal put to him that information from UNHCR and DFAT did not indicate that Tamils from Mullaitivu were singled out for mistreatment or that Tamils from Udappu were being persecuted or targeted for harm or mistreated because of their ethnicity; it notes the independent information indicated that the Tamils who had been subjected to mistreatment in the recent past had the additional attributes discussed earlier, and that simply being Tamil from a particular area was not a reason or reasons for being imputed with an adverse profile. The applicant said that the information is incorrect…

   37. The applicant’s migration agent submitted that the fact there are no media reports of Tamil fishermen being harmed or mistreated in Udappu did not mean it was not actually happening; she said she did not have any independent information that it was happening but noted there was an absence of media reports about things generally in Udappu; Sri Lanka is in a post-conflict situation and the GoSL treats Tamils poorly and the fact the applicant is originally from Mullaitivu and has come illegally to Australia and claimed protection here gives him a profile of potential concern…

   44. The Tribunal has carefully considered his evidence and the independent information before it and while it accepts he was questioned by the CID on two occasions in 2009, in light of the fact that neither he or his family were actually involved with the LTTE, it considers that after interviewing him the CID came to the conclusion that he had no involvement or connection or association to the LTTE and that he did not present any value as a source of information, which is why he was released without any further action being taken against him…

   71. The Tribunal accepts that the applicant would return to a difficult life in Udappu and would have to live under a government that clearly has little respect for its Tamil citizens. However his evidence does not reveal that he or any members of his family were subjected to discrimination that affected their capacity to subsist or caused them to suffer significant economic harm or that they were denied access to services or that he or any member of his family were subjected to harm that would amount to serious harm for the purposes of s.91R…

2. It seems clear that the Tribunal did in fact address these claims in its lengthy decision.

Grounds Two and Three

1. Grounds 2 and 3 were developed by Counsel on the basis of being an integer claim although in substance were a claim that the Tribunal failed to deal with significant parts of the evidence that were put forward by the applicant. In this regard the applicant relied upon Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 which followed the reasoning in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99, and was cited with approval and followed in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114.

2. Before turning to the particular facts of this case it is worth noting the factual background that appears in both MZYTS and SZSRS. In both these cases the Trial Judge had concluded that a significant piece of evidence had not been considered by the Tribunal because it was not mentioned in the Tribunal’s decision. In both cases the Trial Judge’s decision was affirmed.

3. In MZYTS the Tribunal failed to mention more recent country information which showed significant risks to the applicant. Instead the Tribunal only mentioned older country information which did not identify those risks. At trial it was concluded that this showed that the Tribunal had not considered the information and therefore the application was allowed, this was affirmed on appeal.

4. In SZSRS the claim centred upon whether or not the applicants were Christians and the impact that would have upon them if they were returned to the People’s Republic of China. There were a number of issues about the extent to which they had adopted the Christian faith and whether or not their child had been baptised. Significantly there was a letter from a pastor of a large church in New South Wales directly addressing these issues. That letter was not mentioned in the Tribunal’s decision. Not surprisingly the Trial Judge concluded that it indicated that the Tribunal had failed to consider that evidence and that therefore the Tribunal had fallen into error. In SZSRS the Court said that “The approach favoured in SZRKT and MZYTS is that the distinction between claims and evidence might be a useful tool of analysis but is not itself the fundamental question. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error” (see para. 29). 

5. The Court went on to state:

   34. The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].

1. The Court then turned to the particular facts of the case and at para. 39 said “…if the letter had been considered by the Tribunal, it could readily be expected that it would have been referred to in the Tribunal’s reasons.”

2. Turning then to the argument on the facts of this case. The claim is that the Tribunal has failed to properly address and consider the evidence of the applicant relating to a criminal group described loosely as either grease men or grease devils. This was squarely raised by the applicant in his written submissions where the applicant said:

   20. More recently, over the last year in Udappu, there have been gangs of people who attack Tamils in their homes at night. These gangs are nicknamed ‘grease men’ (meaning monsters in Tamil). The grease men have raped females in our town of Udappu and have attacked families in their homes. When the locals try to chase the grease men, they run to the navy camp and the navy personnel deny any knowledge of them.

   21. I know of these grease men attacks personally as my neighbours were attacked by the grease men last year, around the middle of 2011. The grease men climbed through the roof of my neighbours home and my neighbours ran away in fright. Their house was ransacked and robbed.

   22. In another house, five houses away from mine, the female occupant was raped by the grease men. These grease men wear blades imbedded in their gloves. The female victim had part of her skin ripped off in this attack by the blades that these grease men use. This also happened in the middle of 2011.

   23. These grease men attacks and the constant harassment from the authorities (army, navy, police and CID) has caused a situation of terror to spread in Udappu. There is no protection offered to the Tamil community. As Tamil’s we do not feel able to go to the police or authorities for protection because they are the ones perpetrating these crimes and this harassment.

3. As Counsel for the applicant properly identifies it was also the subject of discussion in the transcript appearing at page 25 from line 13:

   MEMBER: All right, now you also made reference before to there being some incidents in your area with the grease devils? Would you like to tell me about those incidents?

   --- It happened in middle of 2011 so and our people used to come from a Chinese house, the Tamil – they come Tamil – (indistinct) the Tamil (indistinct) hey used to wear the spring shoes and but no one can identify them. So they used to have a (indistinct). Then one day (indistinct) they tried to catch a women mostly, they went to many houses. It didn’t happen in our (indistinct) one woman for (indistinct) and hit, I think it is a (indistinct) Tamil this violence against the Tamil searching this, they said (indistinct) security in the Tamil, that’s why I’m telling. (Indistinct) the Tamil, this type of problem also come (indistinct), that’s why I’m telling this.

   …

   When was the last time you were aware of an incident of that nature happening? --- It’s happened in 2011 (indistinct).

   In 2011? --- 2011.

   So that was the last time? --- As far as I know.

   Did anything happen in your house or to any member of your family? --- Not happened (indistinct).

4. I accept the proposition from Counsel that the question of a claim relating to grease men or grease devils was squarely raised by the Tribunal and appears to have been the subject of at least some discussion in the hearing before the Tribunal. It is clearly a significant matter that the Tribunal needed to deal with in order to properly exercise their functions.

5. I turn then to consider what appears in the Tribunal’s decision on this topic. Firstly, it is clear that the issue was identified by the Tribunal as an issue that it had to determine. It clearly sets out a summary of the claims at para. 6(e) (quoted above) with respect to claims concerning grease devil gangs. The Tribunal then goes on to consider or summarise the evidence of the applicant in this regard, saying:

   57. The applicant has consistently maintained since arrival that ‘grease devils’ had been active in Udappu in 2011 and that they had broken in to homes, attacked people and raped women; however, he did not give evidence to the Department or Tribunal that he or any member of his family had been attacked, threatened or harmed by a ‘grease devil’, and accordingly, on the evidence before it, the Tribunal does not accept that the applicant was ever subjected to any form of mistreatment by a ‘grease devil’.

6. Much later in the decision the Tribunal then goes on to make findings with respect to this part of the claim, saying:

   80. With regard to his claim that he would be at risk of being harmed by random criminal attacks by ‘grease devils’ who had been active in Udappu in 2011, having carefully considered the applicant’s evidence, which is that neither he or any member of his family had been targeted, attacked or threatened by a ‘grease devil’ in the past, and that the last attacks were in 2011, and while acknowledging that independent information indicates that criminal groups are active throughout Sri Lanka, on the evidence before it the Tribunal considers the chance of the applicant being targeted or subjected to harm by a ‘grease devil’ or other criminal group to be mere speculation and remote, and it does not accept that there is a real chance he would suffer serious harm in this way for any reason.

7. It appears to me to be very clear that the Tribunal did identify this as an integer of the applicant’s claim and that the Tribunal did identify the evidence he had given and did squarely consider that evidence and make a finding with respect to it.

8. Counsel attempted to distinguish these reasons on the basis that part of the claim included a claim that a neighbour’s house had been the subject of attack in mid-2011 and this was not mentioned in para. 57 or 80. However, it was certainly identified in para. 6(e).

9. Given that the Tribunal have clearly identified this topic and have looked at the substance of it and identified the relevant factual matters, it appears to me that this case does not fall into the category described in SZSRS or MZYTS. The particular piece of evidence given by the applicant that is the subject of the complaint was really only one small part of his overall claim with respect to grease devils or grease men.  The failure of the Tribunal to mention this “particular” of the claim does not appear to me to be sufficient to indicate that they have overlooked it or overlooked a significant part of the claim. On the material in the decision I would not be prepared to draw the inference that the Tribunal have not considered this aspect of the claim. I note here, as has been said in a number of decisions, both with respect to judicial review and appeals from Trial Judges, one does not expect every single piece of evidence or every particular to be mentioned in the judgment or decision.

10. The question is (as the Court set out in the decisions mentioned above) a question of degree given the nature of the evidence and the nature of the issues before the Tribunal. I am not persuaded that this case falls into the category where a fair reading of the decision, in light of the particular issues and evidence here it could be said that the Tribunal has fallen into error that is judicially reviewable.

11. The applicant also attempted to raise a claim that the Tribunal had failed to deal with this aspect of the matter through the prism of the test of whether or not there was a real chance that he would suffer serious harm. This does not seem to be a sustainable argument given the specific reference to it by the Tribunal at para. 80 as quoted above.

12. I have also considered whether or not this is really an argument that the finding of the Tribunal on this point was so unreasonable that it indicated jurisdictional error or to use the older formulations of such a test for judicial review, it was so unreasonable that no reasonable decision maker could have come to that decision (the Wednesbury test). However, it does not appear to me that on the facts before the Tribunal it would be open to conclude that their decision was so unreasonable. Rather, it seems to me to be a decision that was open to them on the material and that in reality the argument comes down to an argument for merits review. Merits review is not available in judicial review proceedings before this Court.

13. In the circumstances I therefore dismiss the application.

14. In this matter the Minister claims costs in the sum of $5,800. Costs ordinarily follow the event and there is nothing in the facts of this case to indicate that costs ought not follow the event. The scale fee is in excess of $6,000. In the circumstances I find that the costs sought by the lawyers for the Minister at $5,800 are reasonable.

15. I order that the applicant pay the first respondent’s costs fixed at $5,800. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  1 August 2014