MZZUQ v Minister for Immigration

[2014] FCCA 2308

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZUQ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2308

Catchwords:
MIGRATION – Judicial review application – whether Tribunal properly considered evidence arising from trial in County Court of Victoria – whether Tribunal failed to make appropriate enquiries arising from County Court trial – no jurisdictional error shown.

Legislation:  
Migration Act 1958

Minister for Immigration and Citizenship v SZIAI and Another (2009) 259 ALR 429
Chava v Minister for Immigration and Border Protection [2014] FCA 313

Applicant: MZZUQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1767 of 2013

Judgment of: Judge Burchardt

Hearing date: 12 August 2014

Date of Last Submission: 12 August 2014

Delivered at: Melbourne

Delivered on: 16 October 2014

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Brown

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The application filed 22 October 2013 is dismissed. 

2. The Applicant pay the First Respondent’s costs. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1767 of 2013

MZZUQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 September 2013.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa. 

2. The grounds of application in the application itself assert a failure on the part of the Tribunal properly to investigate matters arising out of and connected with a proceeding in the County Court of Victoria.    

3. Paragraphs 26 and 31 of the first respondent’s written submissions characterised grounds 1 and 3 of the application as being an assertion that the Tribunal failed adequately to investigate the circumstances surrounding the County Court proceedings, and grounds 2 and 4 as constituting an assertion that the Tribunal failed to properly consider the transcript from the County Court.  This characterisation is in my view correct. 

4. In my opinion, the grounds asserted are not made out, and it follows that the application will be dismissed with costs. 

The applicant’s written submissions

1. The applicant took advantage of the opportunity afforded by orders made by Registrar Allaway on 18 December 2013 to file contentions of fact and law on 6 August 2014.  The gravamen of the submissions is at paragraphs 5 to 6.  Paragraph 5 sets out the “thrust of the applicant’s case”, which derives from the fact that the applicant sublet two rooms of his rental property to Tamil men from the UK in 2009.  They were arrested shortly thereafter and charged with fraud, and the applicant was charged in March 2011 with conspiracy to defraud, although the charge was eventually dropped. 

2. According to the written submissions, during the applicant’s record of interview the issue of the two men being members of the LTTE and sending money to Sri Lanka was raised, albeit that the applicant denied any knowledge.  The two tenants called Raj and Deen (the only names the applicant knew them by) pleaded guilty and were dealt with by Judge Hannan.  During the course of pleas, according to the written submissions, it was stated on behalf of the two accused that there was an association between them and the LTTE. 

3. In November 2012, the charges against the applicant were discontinued, and his application for a Protection visa followed in January 2013.  The written submissions asserted that the applicant was in fear that his connection to the two LTTE members would implicate him, and that upon his return he would be subject of action by the Sri Lankan Government.  The written submissions assert that, “the applicant has stated that this has already commenced in that his father home has been visited on a number of occasions by the CID.”

4. Paragraph 6 goes on to assert that there is ample country information detailing that any person associated with the Tamil cause is likely to be taken into custody on arrival at the airport, and that there are reports of abuse and torture of such detainees.

5. The written submission at paragraph 6 goes on to assert:

   “… There is no doubt that the applicant’s lawyer had not provided all relevant documentation with regards to these charges, as one of those documents would have been a dvd copy of the record of interview conducted between the applicant and the informant in relation to his charges.  That would have laid out the circumstances of the applicant’s involvement with these two tenants and the connection to the LTTE would have been raised.  Another very important stage was the committal proceedings of the two tenants, where a brief of evidence was provided by the OPP.  This brief contained statements from two witnesses who gave evidence against the two tenants and who implicated them with connections to the LTTE.  The tribunal should have taken into account the fact that the two tenants and the applicant were not dealt with together, which meant that he had no access to any of the pleas which were given on behalf of these two tenants.  The applicant was only provided with two pages of the transcript which dealt with their pleas and therefore does not give a proper indication of any of the plea material which was put on behalf of the two tenants.  Likewise, a transcript of the judge’s decision in relation to the two tenants would have helped the tribunal in coming to its conclusion as to what exactly was the degree of these two tenants involvement with the LTTE.  The tribunal should have taken upon itself to make inquiries with the relevant government agencies to gain access to the above stated information, especially the committal proceedings, which would have been readily accessible to it, as opposed to the applicant who was an individual.”

6. The rest of paragraph 6 goes on to impugn the Tribunal’s decision on the basis that:

   “There is no evidence for the tribunal to come to its conclusion and rejecting the applicant’s claims that Raj and Deen were members of the LTTE and sent money to the LTTE in Sri Lanka.  The onus should have been on the tribunal to make further inquiries as the exact status of these two tenants with the LTTE.  If the tribunal made those inquiries and it was established that evidence had been given to the court of their connection with the LTTE, would the tribunal still come to its conclusion that it did not accept that the CID in Sri Lanka interrogated the applicant’s father and questioned him about the applicant’s association with those two tenants.  The applicant also states that the tribunal was wrong when it concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there was a real risk that he will suffer significant harm. 

   It is submitted that the risk the applicant faces is real and directed against him personally because of this connection to these two tenants, even though he was unaware of their association with the LTTE.”

7. It should be noted that at the hearing before the Court, the applicant’s submissions (he represented himself) were wholly consistent with the contentions of fact and law.  He referred to his difficulties arising out of the two LTTE gentlemen, the eventual expiry of his student visa, the fact that his father had been contacted by the CID in Sri Lanka and the non-provision of documentation to him through his lawyer.

8. I will deal with the first respondent’s submissions in due course, but for the moment it is appropriate to see what was before the Tribunal and what the Tribunal made of it. 

The Material in the Court Book (“CB”)

1. The applicant’s claims were first articulated, as far as I can see, in paragraph 48 of his original application at CB9.  This refers to the involvement with housemates, being Tamil youths who came from England, and the police case.  He referred to the fact that he had learned they were members of the LTTE, but that he had no knowledge of it.  He also asserted that:

   “Recently, the officers from the Criminal Investigation Department had gone to my house and inquired from my parent about me and they also asked many questions about me.  From the questions the above officers had asked, my parents are of the opinion that the above officers suspect me to have had some involvement with the LTTE.”

2. On 28 February 2013, the applicant’s lawyers, (who acted for him throughout) forwarded a statement of claims from the applicant to the Department.  That statement is at CB138-140.  Although this provides more detail, in my view it adds nothing to the applicant’s earlier more succinct account.  The applicant was asserting that Raj and Deen had lodged with him and set out the difficulties that had resulted, both in Australia (the criminal proceeding that ultimately ceased), and the investigation by the CID in Sri Lanka. 

3. The decision of the delegate is at CB158-166.  It records the applicant’s claims in very much the terms previously asserted.  The delegate made strong credibility findings opposed to the applicant (not directly arising from the claims about the two LTTE persons and the County Court case), and on that footing, appears to me to have not accepted those claims either.  What is worthy of note is that the applicant would have known, following the hearing before the delegate, that his credibility was in issue. 

4. On 26 July 2013, the applicant’s lawyers forwarded the applicant’s statement in respect of his review application (CB203-206).  Relevantly for these purposes, in addition to repeating his earlier claims as made, the applicant asserted at CB205:

   “It is true that the case officer told me at the interview that he may make an adverse credibility finding.  After explaining what had happened to me and after submitting documentary evidence to the Australian Police charging me in Australia and then discontinuing the charges against me, I did not have any more documents to submit to the Case Officer to prove my innocence.”

5. On 21 August 2013, the applicant’s lawyers wrote to the Tribunal noting that, inter alia, they were no longer acting for the applicant, and on 22 August 2013, the Tribunal received a request for an “extension” from the applicant (CB216) which relevantly asserts:

   “As you requested I have collected all the evidence which was needed for my case from my criminal lawyer.  I have then given these documents to my agent for preparation.  The documents already been prepared but my agent he is asking for 1500 dollars before he releases it.”

6. The request went on to say that the applicant was in the process of paying, but would need more time.

7. The Tribunal granted an extension of time until 3 September 2013, and on 30 August 2013, the lawyers wrote to the Tribunal confirming they now acted again for the applicant and enclosing both a submission and a statutory declaration of the applicant. 

8. The statutory declaration is at CB220 and relevantly states:

   “3.    Further to my evidence given to the Onshore Protection Victoria, DIAC and to the Refugee Tribunal, I wish to add the following:

   i.   The Australian police officers who interrogated me mentioned to me that my sub tenant Raj whose real name is either SELVKUMARAN VARATHA RAJ also known as MARKANDU SELVAKUMARAN who is a Sri Lankan Tamil resided in UK is connected to LTTE.

   ii.  It transpired in the County Court proceedings, that the above is connected to LTTE.

   iii.         I firmly believe that the Sri Lankan Police must have obtained the above information from the Australian police and hence they are strongly suspecting me to have knowingly helped the LTTE member or members in Melbourne by giving accommodation.

   iv. I have no other country to go from Australia and I sincerely believe that on my return to my country, I will be arrested and persecuted by the Sri Lankan police.

   v.  I will not be protected by anyone in my country.”

9. The written submissions of the solicitors for the applicant traverse the history of the matter in terms that generally add nothing to what had already been asserted.  At paragraph 18, however, the written submission asserts (CB223):

   “Finally, the evidence transpired at the County Court relating to Tamil Tigers on page 44 of the Crown opening and record of interview.  (annexed herein a copy of the email received from Clare Morris, Lawyer of Robert Stray Lawyers who acted for the applicant and page 44 of the crown opening and Record of Interview and the comments made by her Honour and Mr. Taaffe, Counsel who acted for one of the accused connected the matter).

   The following could be seen on the above page 44;”

10. There is then set out an excerpt from the transcript at page 44, which raises two names, one being Alkegama, and the other being Hettiarachchige. 

11. There is also a submission by Mr Taaffe, counsel who acted for one of the accused connected with the matter (as the applicant’s lawyers put it).

12. The submission continues:

    “19.  In these circumstances, I request the Tribunal to consider the following facts:

    1) Applicant’s previous character

    2) The Australian Police charging the applicant.

    3) The Australian Police discontinuing the charges laid against the review applicant.

    4)   The inquiry made by the Sri Lankan Police about the review applicant and suspecting him to have helped harboured and helped the person/s alleged to be LTTE members or supporters. 

    5)   The Australian police dropping the charges against the applicant and filing a ‘Notice of Discontinuance’ as they must have now believed that the applicant is innocent. 

    6)   The current attitude of the Sri Lankan Police in dealing with a suspected LTTE member or with a person alleged to have helped a LTTE member in order to prevent LTTE regrouping in Sri Lanka. 

    7)   The suspicion created in the minds of the Sri Lankan police that the applicant had helped the LTTE.

    8)   The real chance that the applicant will be arrested and persecuted by the Sri Lankan police.

    9)   Is the applicant has a third safe country to go and settle from Australia.”

13. From a more complete version of the transcript, albeit that it only constitutes the appearances, page (CB227) and page 44 (CB228), it is apparent that there were three accused in the proceedings, whose names respectively were, Vibhavi Alkegama, Nipuna Bogoda Hettiarachchige and Mohamed Niyas.  None of those names, of course, are those of the applicant. 

The Tribunal’s Decision

1. The Tribunal traversed the application for review and the relevant law at CB232-235.  The Tribunal then set out the background to the applicant’s application and claims at CB235-237 in terms that in my view accurately record and traverse the matters the applicant had asserted. 

2. The Tribunal then set out a summary of the applicant’s oral evidence at CB237-239.  

3. In particular, the Tribunal recorded what the applicant had to say about his interrelation with Raj and Deen, whose names he had never otherwise known.  At paragraph 39 (CB238), the Tribunal recorded:

   “The Tribunal told the applicant that his evidence was vague and that it needed further detail about why he claims that Raj and Deen were members of the LTTE and what his lawyers had told him.  For example, the Tribunal told the applicant it was concerned that he could not even confirm Raj’s real name.  The applicant admitted that he did not know the details of Raj’s real name but claimed that the police knew everything.”

4. The Tribunal noted the applicant’s claim at paragraph 40 (CB238) that the CID had been to the applicant’s father’s house in Sri Lanka, and detained and interrogated him about his activities in Australia and his association with Raj. 

5. At paragraph 42 (CB239) the Tribunal recorded:

   “The Tribunal explained to the applicant that it found it difficult to accept that the CID would detain and interrogate his father in Sri Lanka and his father would not contact him and find out what was going on in Australia and why the CID were asking questions about him.”

6. The Tribunal noted at paragraph 44:

   “… The Tribunal told the applicant that on the evidence provided it did not accept his claims that Raj and/or Deen were members of the LTTE and sending back money to the LTTE in Sri Lanka.”

7. The Tribunal found at paragraph 46:

   “… The Tribunal find that Deen and the applicant were charged with fraud offences in Australia.  The Tribunal finds that there is no evidence that Deen and Raj were members of the LTTE or suspected of sending money to the LTTE in Sri Lanka.”

8. At the conclusion of the hearing, the Tribunal invited the applicant to contact his criminal lawyer and provide further evidence to support his claims.

9. The Tribunal then recorded a post-hearing submission, which consisted of the materials to which I have already referred, at CB218-225. 

10. The Tribunal dealt with this matter at paragraphs 49 and following (CB240) as follows:

    “49.  The Tribunal has considered the post-hearing submissions and evidence. 

    50.  The Tribunal finds the extract of the County Court transcript vague, brief and of little assistance in supporting the applicant’s claims. 

    51.  Firstly, the three accused named in the County Court proceedings are not the applicant’s sub tenants – Raj (Selvkumaran Varatha Raj aka Markandu Selvakumaran) or Deen Vellaikutty (aka Jamaledeen Vellaikuddy).  It is unclear what connection the applicant has to these accused.  In fact, based on the material submitted, there is no evidence that Raj (Selvakumaran Varatha Raj aka Markandu Selvakumaran) has been charged with any offences.

    52.  Secondly, based on transcript provided, it appears that the accused Hettiarachchige made a reference in his police interview to “being told that these men had been brought out from the UK .... that they were connected to the Tigers”.  It is unclear who the accused is speaking about, how he came to know this information and how it relates to the applicant.

    53.  It also appears the accused Alkegama made some reference in the County Court transcript to the “Tigers” in his psychological report but again, it is unclear what was said and what relevance this has to the accused and his fear of persecution in Sri Lanka.”

11. The Tribunal went on to find that the applicant was jointly charged in Australia with Deen Vellaikutty with fraud offences, and that the prosecution was discontinued in November 2012.  The Tribunal recorded at paragraphs 57-59 (CB241):

    “57.  … The Tribunal accepts that as part of its investigation the police may have questioned the applicant about his association and knowledge of his co-accused.  The Tribunal accepts the applicant’s evidence that he had no involvement with the LTTE and had no knowledge of Raj or Deen being members of the LTTE.  The Tribunal therefore finds that the applicant was not in a position to provide the police in Australia with any information which would lead them to make inquiries in Sri Lanka about his co-accused. 

    58.  Beyond this issue, however, the Tribunal does not believe any of the claims made by the applicant or that he genuinely holds fear of any harm should he return to Sri Lanka. 

    59.  The Tribunal does not accept that the applicant has suffered harm in the past or will suffer harm from the Sri Lankan authorities in the future because of his perceived links to the LTTE or because criminal fraud charges were laid against him in Australia.”

12. The Tribunal went on at paragraphs 60-64 to address various further credibility concerns it had about the applicant as a witness.  The Tribunal found evidence about the applicant’s family home being searched in Sri Lanka and interrogation by the CID of his father to be vague, inconsistent and lacking in detail.  In short, the Tribunal disbelieved the applicant on grounds set out in the paragraphs to which I refer on a basis, which would seem to me to be at least open to it on the materials as they stood. 

1. The Tribunal repeated more than once, further on in the decision, its failure to accept that the applicant’s former housemates were members of the LTTE and sending money to the LTTE in Sri Lanka. 

2. The Tribunal also considered the applicant’s application against the complementary protection criteria, but nothing turns on that for these purposes. 

An Assessment of the Grounds Advanced by the Applicant

Ground 1.  MRT/RRT case officer didn’t investigate the evidence properly, and all the evidence made from Australian Federal Police and County Court of Australia.

1. This was one of the grounds characterised by the first respondent as being a complaint of a failure on the part of the Tribunal to make further investigation.  The written submissions, echoed to an extent in the oral submissions made at Court, assert that the Tribunal should have inquired with “the relevant government agencies” to gain information about the process whereby the two persons referred to in the material forwarded to the Tribunal were committed for trial and, indeed, the trial itself. 

2. As counsel for the for the first respondent correctly pointed out, the question as to whether the two persons were members of the LTTE was squarely raised before the Tribunal, and the applicant was given a further opportunity to provide material.  The letter from his solicitor at CB218 shows that this was responded to, and no application is contained in that correspondence for further time to make further inquiries, nor was the Tribunal itself requested to take any further steps. 

3. I accept the submission from the first respondent that, when looked at closely, it is apparent that the record of interview referred to in the email from Robert Stary Lawyers at CB226 does not appear to have in fact been tendered to the Tribunal.  It would have been, as counsel for the first respondent correctly submits, easy for the applicant’s migration lawyers to have requested the record of interview from his criminal lawyers, and I accept that the Tribunal was entitled to assume that the applicant’s migration lawyers had forwarded all relevant material. 

4. The High Court described the so-called ‘duty to inquire’ in Minister for Immigration and Citizenship v SZIAI and Another (2009) 259 ALR 429 (“SZIAI”) at [25] in the following terms:

   “Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.³⁵ It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.”

5. The fact that the Tribunal’s duty is limited to reviewing the Minister’s decision, as the first respondent submits, was recently confirmed by Mortimer J in Chava v Minister for Immigration and Border Protection [2014] FCA 313 at [76]-[78].

6. I accept that the Tribunal simply failed to believe the applicant’s assertions that his father had been raided by the CID, and that this finding stands aside, so to speak, from the question of the alleged LTTE membership of the two sub-tenants. 

7. In circumstances where the materials forwarded to the Tribunal were, as the Tribunal recorded in the passages set out earlier, impossible to correlate with the actual names that the applicant provided for the two alleged sub-tenants, and this difficulty of comprehension arose directly from the materials forwarded by the applicant’s migration lawyers, I do not think that the Tribunal fell into jurisdictional error in failing of its own motion to press further inquiries.  The Tribunal was required to review, as the High Court pointed out in SZIAI, and it seems to me that that is what it did. 

Ground 2.  In County Court Honour Judge Hannan, took a decision after listing to co-accused and it’s in transcript of proceedings but my RRT case officer ignore her decision what she mention in transcript and he took his own decision.

1. This ground of application can be dealt with briefly.  The Tribunal’s findings at paragraphs 50-53 deal with the material submitted by the applicant.  They do so in terms, in my view, that were well open to the Tribunal on the evidence and submissions as they then stood.  Review of the findings is not the function of the Court in proceedings such as these. 

Ground 3.  RRT case officer ignor the County Court decision, he didn’t investigate or a made a call to Australian Federal Police to regarding applicant claim to find out whether it’s a lagit case or not.

1. This raises once again the duty to inquire point, already dealt with in respect of ground 1.  For the same reasons, this ground cannot succeed. 

Ground 4.  The case officer in the interview ask the applicant to prove who lived with the applicant was LTTE.  applicant did that but still the case officer didn’t respect the County Court Judge decision and he refuse her opinion.

1. Once again, this is a straightforward attack on a finding made by the Tribunal as to fact.  As with ground 2, the Tribunal’s finding was, in my view, clearly open to it, and this ground cannot be made out. 

Conclusion

1. None of the applicant’s grounds of application, in my view, are made out, and it follows that the application will be dismissed with costs.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  16 October 2014