MZZVO v Minister for Immigration

[2014] FCCA 1447

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZVO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1447

Catchwords:
MIGRATION – Application for review of a decision by the Refugee Review Tribunal – Applicant provided information to migration agent which was not put to the Tribunal – no evidence of fraud – no error on the part of the Tribunal.

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145

Applicant: MZZVO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1899 of 2013

Judgment of: Judge Whelan

Hearing date: 11 June 2014

Date of Last Submission: 11 June 2014

Delivered at: Melbourne

Delivered on: 11 June 2014

REPRESENTATION

Counsel for the  Applicant Applicant in person

Counsel for the First Respondent: Mr Hornsby

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The Application filed 11 November 2013 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1899 of 2013

MZZVO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 10 October 2013. The Tribunal determined to affirm a decision of a delegate of the Minister not to grant the Applicant a protection visa. 

2. The Applicant now seeks the following orders:

   An order that the decision of the Refugee Review Tribunal or Minister be quashed.

   A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law;

   A declaration that the recommendation of the Refugee Review Tribunal Reviewer was not made in accordance with law, by reason of the grounds/s of this application.

   An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Refugee Review Tribunal.[1]

   [1] Application filed 11 November 2013 at p.3.

Background

1. The Applicant arrived in Australia on 20 June 2012. On 6 September 2012, he applied to the Department for a protection visa. On 15 November 2012, a delegate of the Minister refused to grant the Applicant a protection visa. On 11 December 2012, the Applicant applied to the Tribunal for a review of the delegate’s decision. On 14 March and 15 May 2013, the Applicant attended Tribunal hearings accompanied by his representative and assisted by a Tamil interpreter. In addition, the Applicant’s representative provided the Tribunal with written submissions on 30 April 2013.[2] On 11 October 2013, the Tribunal informed the Applicant of its decision, and on 11 November 2013, the Applicant lodged this application for judicial review.

   [2] Court Book filed 11 February 2014 at pp.142-153.

The Applicant’s claims

1. The Applicant’s claims were set out in a declaration[3] accompanying his application for the protection visa, and in submissions provided by his representative to the Tribunal. He claimed to fear harm from the

   
   

   Sri Lankan authorities for reason of:

   ·His Tamil ethnicity;

   ·His imputed political opinion in support of the Liberation Tigers of Tamil Eelam (“LTTE”);

   ·His Hindu religion;

   ·His membership of a particular social group comprising of Tamil men from a predominantly Tamil area; and

   ·Being a failed asylum seeker.

   [3] Ibid at pp.45-47.

2. The Applicant also claimed to have problems with ‘grease men’ in his village, and to have suffered from general discrimination against Tamils, in Sri Lanka, particularly in education and employment. The Applicant claimed to have been arrested by the Sri Lankan Army

   
   

   (“the SLA”) and police on three occasions between 2009 and 2011, and detained for hours with other young Tamil men. He claimed that he had been hit on the neck by an SLA officer on one of these occasions. The Applicant also claimed that these arrests disrupted his schooling and, that in 2009, he was made to sign a document written in Sinhala that he did not understand, by SLA officers. The Applicant further claimed that he was forced to work without pay by the SLA on several occasions each week when he attended a playground near the army camp. 

The Tribunal decision

1. In its decision,[4] the Tribunal found that the Applicant’s evidence regarding his identity and origins had been consistent. It accepted that he had been arrested and detained by the Sri Lankan authorities in poor conditions on three occasions, as he claimed. While the Tribunal accepted that this had been “unpleasant [and] uncomfortable”[5] for the Applicant, it found on the evidence that this did not amount to serious harm.

   [4] Court Book filed 11 February 2014 at pp.164-180.

   [5] Ibid, p.169 at para.27.

2. The Tribunal also did not accept that the arrests meant that the Applicant was suspected of having links with the LTTE. The Tribunal accepted that the Applicant had been made to sign a document written in Sinhala by SLA officers in 2009. With respect to his claim to have been forced to undertake unpaid work for the SLA, the Tribunal accepted that the Applicant may have been forced to work on one occasion, but did not accept that the Applicant would continue to attend the same playground if it led him to undertake unpaid work on a regular basis. It concluded that the Applicant had embellished these claims, and that the work involved did not amount to serious harm.

3. The Tribunal also accepted that the Applicant’s schooling had been disrupted as a result of these arrests, but found that this did not amount to serious harm. The Tribunal accepted that Tamils faced some barriers and discrimination in Sri Lanka, but did not accept that inequity in schooling resources amounted to serious harm. It did not accept either that the Applicant’s subjection to discrimination amounted to serious harm.

4. The Tribunal accepted that the Applicant may have faced derogatory comments about his religion, but again found that this did not amount to serious harm. It found on the Applicant’s own evidence that he personally had not been harmed by the ‘grease men’. On the basis of the available country information, the Tribunal did not accept there was a real chance the Applicant would face serious harm on return to

   
   

   Sri Lanka for reasons of his Tamil ethnicity.

5. The Tribunal found that nothing else in the Applicant’s circumstances would bring him to the adverse attention of the Sri Lankan authorities. Further, the Tribunal did not accept that there was a real chance the Applicant would face serious harm on return to Sri Lanka because of his illegal departure and status as a failed asylum seeker.

6. The Tribunal did not accept that the Applicant would be imputed with political opinion in support of the LTTE, or that he faced a real chance of serious harm for reason of his membership of a particular social group or because of his Hindu religion.

7. The Tribunal concluded that the Applicant did not have a well‑founded fear of persecution, and for the same reasons the Tribunal found there was not a real risk that the Applicant would face significant harm on return to Sri Lanka. The Tribunal did not accept the claim that the general oppression of Tamils gave rise to a real risk of significant harm, or that the disruption of the Applicant’s schooling and his experience of being required to work unpaid for the SLA amounted to significant harm. The Tribunal therefore concluded that the Applicant did not satisfy the complementary protections criteria. 

Grounds

1. The grounds for review contained in the application are as follows:

   1.That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

   2.  More details will be provided by the legal representative.[6]

   [6] Application filed 11 November 2013 at p.3.

2. In oral submissions today, the Applicant raised a new issue. He stated that he had provided further information concerning the circumstances of his family, which related to an assault on his father by members of the military, to his lawyer in July 2013, and requested that this material be provided to the Tribunal. This occurred prior to the Tribunal handing down its decision.

3. From the Court Book material before the Court, it would appear that this material was never put to the Tribunal. In handing down its decision, therefore, this material was not taken into account by the Tribunal.

The First Respondent’s submissions

1. The First Respondent, in its submission, states that the ground that the Tribunal’s decision was affected by legal error provides no particulars. Further, there is no jurisdictional error on the part of the Tribunal in failing to take into account material that is not before it. 

2. The First Respondent submits that the Tribunal’s findings were open to it on the available evidence, and the Court cannot review the merits of the Tribunal’s decision.[7] 

   [7] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272.

Conclusions

1. The Applicant has not identified any legal error on the part of the Tribunal to attract the jurisdiction of this Court to quash the Tribunal’s decision. The Applicant raised an issue that he had provided further information concerning the circumstances of his family - relating to an assault on his father by members of the military - to his lawyer in July 2013, prior to the Tribunal handing down its decision, which was not taken into account by the Tribunal. It appears that this material was never put to the Tribunal. An application for judicial review is confined to the material put before the Tribunal, and I refer to the decision of SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 in support of that.

2. It would be necessary to establish fraud by the migration agent having the effect of disabling the Tribunal from discharging its statutory functions to establish an error by the Tribunal. Such a case was addressed by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. In general, however, as the High Court pointed out, a person whose conduct before an administrative tribunal has been affected to the detriment of that person, by bad or negligent advice, or some other mishap, should not be heard to complain that the detriment vitiates the decision made.

3. In other words, it would only be in exceptional cases where fraud on the part of a migration agent is such that, the Tribunal has been prevented from conducting a hearing as specified in the statutory context, that the Court would be able to grant the relief sought by the Applicant in this case. No such evidence has been adduced in this case.

4. From a reading of the Tribunal’s decision, I am satisfied that the Tribunal addressed each of the claims raised by the Applicant before it. With the exception of one matter, the Tribunal accepted what the Applicant told the Tribunal concerning his background and experiences. The Tribunal, however, found that on the facts as presented, it did not show that the Applicant had suffered treatment which amounted to serious harm within the meaning of the Migration Act 1958 (Cth)

   
   

   (“the Act”), nor was there a real chance that he would suffer real harm should he return to Sri Lanka.

5. To a great extent, the Tribunal relied on country information in reaching its conclusions. Reliance on such information, and the selection of the information on which it chooses to rely, is a matter for the Tribunal.

6. The Tribunal relied on the evidence of the Applicant and country information in also determining that there was no substantial grounds for believing that there was a real risk that the Applicant would be subjected to significant harm. He therefore did not attract the complementary protection provisions of the Act.

7. I am unable to discern that, in reaching these conclusions, the Tribunal entered into error.  For these reasons, the application must be dismissed. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  8 July 2014