MZZVA v Minister for Immigration

[2014] FCCA 1455

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZVA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1455

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal – Applicant claimed the Tribunal decision was affected by error of law and took into account irrelevant considerations – no basis advanced by the Applicant for contentions – no error on the part of the Tribunal – application dismissed.

Legislation:

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

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: MZZVA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1826 of 2013

Judgment of: Judge Whelan

Hearing date: 13 June 2014

Date of Last Submission: 13 June 2014

Delivered at: Melbourne

Delivered on: 13 June 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms Latif

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The solicitor for the Applicant be given leave to withdraw from the proceedings.

2. The Application filed 30 October 2013 be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1826 of 2013

MZZVA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. This is an application for judicial review of a decision of the

   
   

   Refugee Review Tribunal (“the Tribunal”) of 8 October 2013. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection visa.

2. Today, the Applicant seeks the following orders: 

   1.  A declaration that the decision of the Tribunal dated

   
   

   9 October 2013 is unlawful, void and of no force and effect.

   2.  Certiorari quashing or setting aside the decision of the Tribunal.

   3.  A writ of mandamus directed to the Tribunal, requiring them to consider and determine the applicant’s application according to law.

   4.  An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from acting upon or giving effect to or proceeding further upon the decision of the Tribunal.

   5. Costs.[1]

   [1] Application filed 30 October 2013, at p.2.

Background

1. The Applicant is a citizen of Sri Lanka and he is Sinhalese. He arrived in Australia on a student visa on 27 October 2007. His visa ceased to have effect on 30 August 2011.

2. On 31 August 2011, the Applicant applied for a protection visa. On

   
   

   26 October 2011, a delegate of the Minister refused to grant the application for the visa sought.

3. On 25 November 2011, the Applicant applied to the Tribunal for a merits review of the delegate’s decision. The Applicant appeared before the Tribunal on three occasions to present evidence and argument in support of his application. Those hearings were on 23 April 2012

   
   

   and on 10 and 24 May 2012. The Applicant was assisted by a

   
   

   migration agent and an interpreter at those hearings. The Tribunal also took evidence from the Applicant’s mother. The Tribunal was unable to reach a further witness nominated by the Applicant and, after the hearing, elected not to pursue its attempts to contact that person.

   
   

   The Tribunal gave the Applicant an opportunity to comment on that decision and provided reasons.

4. On 9 October 2013, the Tribunal notified the Applicant of its decision. The Court would normally be concerned at the considerable delay between the final hearing and the handing down of that decision. However, I note that, between 24 May 2012 and March 2013,

   
   

   further material was presented by the Applicant to the Tribunal.[2]

   [2] Court Book filed 15 January 2014, at pp.211-229.

5. The Tribunal explained the delay being due to the significant volume of evidence it needed to consider, and stated that the reasons were based on both the written and oral evidence before it. On 30 October 2013, the Applicant lodged this application for judicial review.

The Applicant’s claims

1. In his initial application for a Protection (Class XA) visa,[3] the Applicant claimed that:

   [3] Court Book filed 15 January 2014, at pp.1-40.

   ·

   While he was studying in Australia, the political landscape in

   
   

   Sri Lanka had radically changed and his parents had become targets of the Sri Lankan government;

   ·

   He was related to the former Army Commander,

   
   

   GENERAL SARATH FONSEKA (“General Fonseka”), and his parents were closely connected with General Fonseka and worked for him in the last presidential election;

   ·His parents were harassed and intimidated by government authorities by reason of their association with General Fonseka;

   ·His mother was forced to quit her job, his sister lost her job, his father was taken into custody on several occasions and beaten and his parents were forced to move out of his ancestral home;

   ·His family was harassed by the Chief Prosecutor in the case against General Fonseka and his parents were required to report on their whereabouts to the police every week; and

   ·He participated in protest meetings and religious observances in Australia against the arrest of General Fonseka.[4]

   [4] Ibid, at pp.27-28.

2. The Applicant stated that he left Australia for Sri Lanka on

   
   

   30 July 2011. When he arrived at the airport in Colombo, he was questioned about his protest activities in Australia and had his belongings searched. The search revealed photographs of him at protest meetings in Australia. The Applicant stated he was taken into custody where he was badly beaten and assaulted.

3. On 1 August 2011, the Applicant was released into his mother’s care, who took him to a hospital where he was treated for his injuries and discharged after two days. The Applicant immediately left Sri Lanka and returned to Australia on 6 August 2011. The Applicant provided certain documents in support of his claims.

4. Prior to the Tribunal hearing, the Applicant filed a further statutory declaration[5] and submissions with the Tribunal. In his statutory declaration, the Applicant described his political beliefs and activities and those of his family while in Sri Lanka. He claimed his parents had been persecuted for their political activities in support of the

   
   

   United National Party (“UNP”) and General Fonseka, and that the police either did not take their reports or did not investigate them.

   [5] Court Book filed 15 January 2014, at pp.224-227.

5. The Applicant claimed that his family home had:

   ·Been fired upon several times;

   ·Burnt down twice; and

   ·Ultimately been abandoned by his mother,

   and that his father had been:

   ·Repeatedly harassed by the authorities;

   ·Seriously assaulted;

   ·Arrested,

   and was now missing. The Applicant claimed he had not returned to

   
   

   Sri Lanka until 2011 because he was scared. In July 2011,

   
   

   the Applicant returned to Sri Lanka to look for his father and to care for his mother and unmarried sister. The Applicant also provided medical evidence confirming that he had scarring to his body. In June 2012,

   
   

   the Applicant provided a report from a counsellor at the

   
   

   Asylum Seeker Resource Centre who had had four counselling sessions with the Applicant.[6]

   [6] Ibid, at pp.215-216.

6. The report recorded what the Applicant had told his counsellor about his and his family’s experiences in Sri Lanka. The counsellor suggested that the Applicant was suffering from “nightmares, intrusive and terrible memories” and had a “lessened capacity for concentration”.[7] 

   [7] Court Book filed 15 January 2014, at p.216.

7. In March 2013, the Applicant provided a report from his counsellor at Foundation House.[8] The report again outlined what the Applicant had disclosed about his experiences in Sri Lanka. The report indicated that the Applicant:

   ·Had attended 14 sessions at Foundation House;

   ·Had ceased working as a result of distress; and

   ·Exhibited symptoms of post-traumatic stress and high levels of generalised anxiety relating to his experience of detention, torture and trauma.[9]

   [8] Ibid, at pp.218-223.

   [9] Ibid.

8. In March 2013, the Applicant also provided a further statutory declaration to the Tribunal.[10] The Applicant stated that his mother had attended protests in Sri Lanka and was now forced to seek shelter from family members. He stated he had contacted the Red Cross tracing service, but there were no updates on his father’s whereabouts.

   [10] Ibid, at pp.224-227.

The Tribunal’s decision

1. In its decision, the Tribunal noted the counsellor’s report before it, and considered whether the Applicant was fit to give evidence at the hearing sessions. The Tribunal noted that no argument had been put concerning the Applicant’s fitness to give evidence by either his representatives or counsellors. The Tribunal considered the nature of the Applicant’s participation in the hearings, and found that the Applicant was fit to give evidence.

2. The Tribunal expressed the view that there were very significant material disparities between core parts of the Applicant’s account to the Department in his visa application, and to the Tribunal. These disparities led the Tribunal to find that the Applicant’s credibility was degraded to such a point that it was not willing to accept his account of any matter uncritically.

3. The Tribunal found that the Applicant’s father was not missing on the basis of:

   ·The Applicant’s failure to make this claim before the Department;

   ·The inconsistency between this claim and earlier claims presented to the Department; and

   ·The lack of persuasiveness of the Applicant’s explanation for the omission and these inconsistencies.

   The Tribunal did not accept the Applicant’s claims or evidence regarding his and his family’s experiences in 2010 to be reliable.

   
   

   The Tribunal gave reasons for its rejection of these claims, including the Applicant’s failure to raise them in his visa application.

4. On the basis of its assessment of credit, the Tribunal rejected the Applicant’s claim that he was a UNP member, a supporter and activist in the past. The Tribunal rejected the Applicant’s claim that he had been targeted, harassed and threatened for this, or any other reason, including his parents’ or family members’ real or imputed political opinions, or stated relationship to General Fonseka. The Tribunal did not accept the Applicant’s stated relationship to General Fonseka,

   
   

   nor did it accept that the Applicant’s mother had been threatened by reason of her, and her husband’s, pro-General Fonseka activities.

5. The Tribunal made a further finding that, even if a family relationship was demonstrated or imputed, or close and active support of

   
   

   General Fonseka was demonstrated, it did not accept that this would be predictive of serious harm. Country information suggested that even close campaigners and supporters of General Fonseka who had been detained were shortly thereafter released. The Tribunal noted the

   
   

   visa application contained no claim of political activities before General Fonseka’s detention. This, in combination with its credibility concerns, led the Tribunal to reject the Applicant’s claim to have engaged in protest activities in 2008, 2009 and early 2010.

6. The Tribunal did not accept that the Applicant had attended a

   
   

   General Fonseka-related rally in Canberra in 2010, or any other protest activities in Australia in early 2010. The Tribunal also did not accept the Applicant had been photographed at any of these events, and had photographs confiscated by the Sri Lankan authorities on his return in July 2011. The Tribunal did accept that the Applicant attended a

   
   

   pro-democracy, or pro-General Fonseka vigil in 2011, and had been photographed at that event. The Tribunal did not accept his physical presence at that vigil was indicative of a genuinely held political opinion, or that photographs taken at that vigil were stored on any device taken with him to Sri Lanka in 2011.

7. The Tribunal further did not accept the Applicant’s claims he was a member of, or had an active organisational role in any Sri Lankan

   
   

   pro-democracy organisation in Australia, or took papers on behalf of such an organisation to Sri Lanka in mid-2011. The Tribunal did not accept that the Sri Lankan authorities were, or would become, aware of the photos of the Applicant at that vigil, nor that they would result in the imputing of any political opinion such that serious harm would flow to the Applicant now, or in the reasonably foreseeable future.

   
   

   The Tribunal did not accept the Applicant was of adverse interest to the Sri Lankan authorities when he had returned to Sri Lanka in 2011.

8. The Tribunal considered the Applicant’s evidence of physical harm,

   
   

   but considered that those injuries arose from causes other than those claimed by the Applicant. The Tribunal considered the Applicant’s political activities in Australia from 2012 onwards and found that there was no more than an extremely remote chance of the Applicant’s attendance at a meeting of the UNP in Melbourne in April 2012 becoming known to Sri Lankan authorities, or being of concern to them. It considered that, even if the authorities did become aware of his attendance, there was no sound basis for finding there was any more than an extremely remote chance of any harm, let alone serious harm, arising from that. On the basis of the Tribunal’s findings, it also determined that there was no real risk of significant harm

   
   

   to the Applicant within the meaning of subsection 36(2)(aa) of the

   
   Migration Act 1958

   (Cth) (“the Act”).

Grounds for review

1. The Applicant advanced two grounds in support of his application:

   ·Firstly, that the decision of the Tribunal was affected by an error of law; and

   ·Secondly, that the Tribunal had taken into account irrelevant considerations.[11]

   [11] Application filed 30 October 2013, at p.2.

2. In oral submissions before the Court, the Applicant was unable to identify any error of law, or any irrelevant consideration taken into account by the Tribunal. The Applicant’s submissions merely indicated that he disagreed with the findings of fact made by the Tribunal in relation to his claims.

The First Respondent’s submissions

1. The First Respondent submitted that the Tribunal affirmed the delegate’s decision because it was unpersuaded by the Applicant’s claims, largely by reasons of its adverse assessment of the Applicant’s credit.

2. The assessment of credit is in the Tribunal’s exclusive jurisdiction.[12] The Tribunal’s assessment of credit was based on logical, probative material and open on the evidence before it. The First Respondent submits that the Tribunal’s reasons do not reveal any error of law.

   
   

   The Tribunal’s reasons for decision demonstrate it discharged its statutory obligation and arrived at a decision that was open on the material before it. The Tribunal:

   ·Correctly articulated the legal framework within which the application fell for consideration;

   ·Gave proper consideration to the Applicant’s evidence;

   ·Arrived at conclusions based on the Applicant’s evidence and relevant country information; and

   ·Discharged its obligations of procedural fairness.[13]

   [12] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.

   [13] First Respondent’s Contentions of Fact and Law filed 20 May 2014, at para.36.

3. In the present case, the Tribunal reached its decision on the basis of the Applicant’s evidence and claims and independent country information. The Tribunal also had regard to material provided in corroboration of the Applicant’s claims. Accordingly, the Tribunal’s decision does not reveal any consideration of irrelevant considerations.

Conclusions

1. I am indebted to the First Respondent for the excellent explanation of the Court’s jurisdiction in this matter and for the written submissions presented.[14] I fear, unfortunately, from the Applicant’s submissions that he has failed to understand that the Court’s powers are limited in these matters to a consideration of whether the Tribunal made a jurisdictional error.

   [14] First Respondent’s Contentions of Fact and Law filed 20 May 2014.

2. In this matter, the findings of the Tribunal were based substantially on its view of the credibility of the Applicant’s evidence. In short, the Tribunal did not accept the Applicant’s claims because it was not satisfied of their veracity.

3. The assessment of credit is a matter for the Tribunal. The Court should only interfere with the Tribunal’s findings of fact based on an assessment of the Applicant’s claims if the Court is satisfied that there is no rational basis for those findings, and that there is no evidence upon which the Tribunal could reach such a view.

4. The Tribunal raised with the Applicant serious concerns that it had about the fact that significant claims, such as his father’s disappearance in May 2011, were not raised in his statement to the Department, nor were any of the significant political activities he claimed he and his family were involved in and instances of serious harm which he claimed to have occurred prior to 2010.

5. In its reasons for decision,[15] the Tribunal set out its reasons for rejecting a number of the Applicant’s claims. The Tribunal referred to contradictions in the evidence and concerns about the Applicant’s evidence. The Tribunal’s conclusions on all aspects of the Applicant’s claims can also be sourced to its findings concerning his credibility as a witness.

   [15] Court Book filed 15 January 2014, at pp.233-253.

6. Even if the Tribunal made some errors in its fact-finding, these are not matters which necessarily lead to a conclusion that the Tribunal made an error of law. There is no error of law per se in making a wrong finding of fact.[16] There is an exception to that general proposition where a Tribunal makes a finding that is so unreasonable that no reasonable decision-maker could have reached that conclusion on the material before them.[17] On the face of the decision, the Tribunal did not fall into that type of error.

   [16] Abebe v Commonwealth of Australia (1999) 197 CLR 510.

   [17] MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441.

7. The Applicant has not identified the irrelevant considerations which he says the Tribunal took into account in determining his claims.

   
   

   The Tribunal took into account the evidence called by the Applicant,

   
   

   its assessments of the truth of the Applicant’s evidence and relevant country information.

8. In the absence of any information relied upon by the Tribunal being identified by the Applicant as irrelevant, it is difficult for the Court to conclude that the Tribunal made such an error. Irrelevant considerations are ones which the Tribunal is prevented from having regard to, because of the subject matter, scope and purpose of the power it exercises in conducting a review of the Applicant’s claim for refugee status.[18]

   [18] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

9. I am unable to discern anything in its decision to indicate that the Tribunal strayed beyond the scope of its statutory functions in the matters it took into consideration in the conduct of the review.

   
   

   For these reasons, the application must be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  8 July 2014