MZZUT v Minister for Immigration

[2014] FCCA 2054

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZUT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2054

Catchwords:
MIGRATION – Judicial review – whether claim not considered by Tribunal – no failure to deal with claims – parts of claims withdrawn – application for judicial review dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
NABE v Minister for Immigration and Multicultural Affairs (No 2)[2004] FCAFC 263; (2004) 144 FCR 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104

Applicant: MZZUT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1775 of 2013

Judgment of: Judge F. Turner

Hearing date: 13 August 2014

Date of Last Submission: 13 August 2014

Delivered at: Melbourne

Delivered on: 13 August 2014

REPRESENTATION

Counsel for the Applicant: Mr Muller

Solicitors for the Applicant: Harwood Andrews

Counsel for the Respondents: Mr L Brown

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Leave is granted to the applicant to file an amended application.

2. The application for judicial review filed 23 October 2013 and amended application filed 13 August 2014 are dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $6,646.00.

4. All extant applications are dismissed and the matter is removed from the list of pending cases.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1775 of 2013

MZZUT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application for a judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 4 October 2013 (Court Book “CB” p.219). That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Protection (Class XA) visa.

2. By application filed 23 October 2013, the applicant seeks judicial review of the decision of the Tribunal. That application is replaced by an amended application filed by leave today. The sole ground for review in the amended application is:

   (1)The Tribunal erred by failing to consider a claim or a component integer of a claim, made by the applicant.

3. By orders of Registrar Allaway, dated 18 December 2013, a hearing under r.44.12 of the Federal Circuit Court Rules 2001 (the “Rules”) was dispensed with and the matter was listed for final hearing before Judge Riethmuller on 10 June 2014. That matter was re-listed before me today.

4. The applicant did not file and serve his amended application 35 days before the hearing but sought leave to file it today. The first respondent had notice of the amended claim since the applicant filed written submissions on 25 July 2014, and filing the amended application today was not opposed.

5. The applicant filed and served written submissions on 25 July 2014 relating to the ground in the amended application that the Tribunal erred by failing to consider a claim or a component integer of a claim made by the applicant being that the applicant was a person to whom Australia owed protection obligations:

   (a)by reason of a well-founded fear of persecution because of imputed political opinion (being regarded as a ‘mouthpiece’ or ‘supporter’ of the LTTE) or membership of a particular social group being returnees to Sri Lanka; and/or

   (b)by reason that he was at real risk of significant harm within the meaning of section 36(2)(aa) of the Act because of the intimidation, extortion and threats to which he might be subjected following his return to Sri Lanka.

6. The written submissions referred to “abduction and extortion by armed groups” (CB p.202.9).

7. At the hearing today, Mr Muller of Counsel appeared for the applicant and Mr L. Brown of Counsel for the first respondent.

8. Apart from references to case law, nothing of significance was raised that was not put in the written submissions by the parties.

9. Mr Muller referred to the decision in NABE v Minister for Immigration and Multicultural Affairs (No 2)[2004] FCAFC 263; (2004) 144 FCR 1 at [58] that.

10. Para [58] is:

    “The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal”

11. The Tribunal is obliged to deal with claims that are clearly apparent on the face of the material before the tribunal even though they are not expressly advanced.

12. The Court finds that the claim of a “threat of abduction and extortion by armed groups” was not clearly apparent on the material before the Tribunal. The last paragraph on CB p.202 merely refers to a piece of evidence contained in country information, and makes no suggestion that the applicant made a claim along those lines.

13. Mr Brown submits that the paragraph paraphrases country information and is in the nature of evidence. The Court agrees.

14. The Tribunal dealt with the applicant’s claim of risk of harm because of the applicant’s real or imputed political opinion (CB p.229 [47]), and made a finding of fact that “there is not a real chance that the applicant would be seriously harmed for reason of his real or imputed political opinion if he returned to Sri Lanka now or in the reasonably foreseeable future”. That finding of fact is not amenable to review.

15. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:

    “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

16. It is submitted for the applicant, that that finding was made in relation to a risk of harm from the Sri Lankan authorities and not to the claimed risk of harm from persons other than the Sri Lankan authorities, being from armed groups. The claim originally included a further claim of harm from other persons in the general community. That claim was not pursued before the Court – or that part of the claim was not pursued.

17. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]:

    “It may be that it is unnecessary (for the Tribunal) to make a finding on a particular matter because it is subsumed in findings of greater generality.”

18. The Court finds that the finding of fact by the Tribunal at (CB p.229) [47] was confined to a risk from Sri Lankan authorities and that the claim of a risk from armed groups was not clearly apparent on the material before the Tribunal. It is submitted for the applicant that the Tribunal failed to address the applicant’s claim that he faced a real chance of serious harm by way of intimidation, extortion and threats from armed groups because of his real or imputed political opinion. That part of the claim of risk from the general community was not pursued and was withdrawn.

19. The Tribunal considered the claim based on a well-founded fear of persecution arising from the applicant’s membership of a particular social group being Tamils who left Sri Lanka illegally and who unsuccessfully made claim for asylum in Australia (CB p.229.3). The Tribunal made a finding of fact that there is not a real chance of the applicant being subjected to serious harm by reason of his race, his real or imputed political opinion or membership of the particular social group of Tamils who returned after unsuccessfully seeking asylum in Australia (CB p.230.7).

20. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

21. It is submitted for the applicant that the Tribunal failed to identify the component of the claim of a fear of abduction and extortion by armed groups. However, the Court has found that that claim was not clearly made before the Tribunal.

22. In SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 Lindgren J decided at [58]:

    “It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.”

23. A failure to make a finding regarding a piece of evidence does not amount to jurisdictional error: see VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104 at [25].

24. The Court finds here that there was a failure to refer to a piece of evidence, but not a failure to deal with an integer of the applicant’s claims.

25. It is submitted for the applicant, in relation to the Tribunal’s consideration of the complementary protection obligations in s.36(2)(aa) of the Act, that the Tribunal erred in finding that the applicant advanced no additional reasons to those stated above (CB p.231 [56]).

26. The claim stated above did not include the threat of harm by way of intimidation, extortion and threats from armed groups because of the applicant’s real or imputed political opinion. That claim was not clearly apparent on the material before the Tribunal and was not made to it.

27. The first respondent filed and served an Outline of Submissions on

    
    

    6 August 2014. The first respondent submits that the Tribunal does not have to refer to each piece of evidence advanced by the applicant. The Court agrees. The Court finds that the last paragraph on CB p.202 is merely a piece of evidence.

28. The first respondent submits that the claim allegedly not dealt with was not a substantial, clearly-articulated argument. The Court accepts that reason for the reasons stated above. The first respondent contends that the claim was dealt with. It is unnecessary for the Court to deal with that submission as the Court has found that the claim was not made to the Tribunal.

29. The Court finds that the Tribunal did not fail to deal with an integer of the applicant’s claims. The Court dismisses the application for judicial review. 

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

Date: 4 September 2014