MZZWR v Minister for Immigration

[2014] FCCA 1771

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZWR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1771

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal decision – grounds wholly general in nature and unparticularised – application for further adjourned refused – no error in Tribunal’s decision identifiable – application dismissed.

Legislation:  

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

Applicant: MZZWR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2086 of 2013

Judgment of: Judge Burchardt

Hearing date: 11 July 2014

Date of Last Submission: 11 July 2014

Delivered at: Melbourne

Delivered on: 14 August 2014

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr L. Brown

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The Application filed 29 November 2013 be dismissed. 

2. The Applicant pay the First Respondent’s costs fixed at $6,646. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 2086 of 2013

MZZWR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 October 2013 by which the Tribunal affirmed a decision not to grant the applicant a Protection (Class XA) visa.  The grounds of the application are as follows: 

   “1.    The tribunal denied me procedural fairness because they did not give me a fair hearing.

   2.    The tribunal failed to properly consider all of my claims.

   3.    The tribunal didn’t give me an opportunity to comment on an issue that was in dispute.”

2. The affidavit in support does no more than annex the decision of the Tribunal and the applicant, understandably, has not taken advantage of the opportunity provided by the orders of Registrar Allaway made on 19 February 2014 to file any amended application or written submissions.  When the matter came before the Court, the applicant, who was self-represented with the assistance of an interpreter, said that he was unable to engage a lawyer and because he cannot understand English, it is hard for him to communicate with a lawyer, but that he would engage a lawyer if given time.  He said he had been unwell for the last two weeks. 

3. He said that when he first approached a lawyer, the lawyer indicated it would cost some $2,000 to read the documents and substantially more to represent him through to hearing and he said he did not have money at that time.  He said he had requested a friend’s help to get a lawyer and had been informed about a month ago by the friend that there was a lawyer who was able to assist him.  It was made clear by the applicant that what he was seeking was an adjournment to obtain legal representation. 

4. I have every sympathy with the applicant’s predicament.  He is in a country in which he does not speak the language and he would have no familiarity with Australia’s immigration law whatever.  Indeed, the proceeding had to be stood down initially to enable the first respondent’s written submissions to be interpreted to him. 

5. Nonetheless, the fact of the matter is that this matter has been in the Court since it was filed on the 29 November last year.  It was fixed for trial on 19 February 2014 by Registrar Allaway.  The applicant has had over eight months in which to obtain legal representation and has had, at the very least, a month since his friend apparently identified a lawyer who was prepared to assist.  In circumstances where the Court’s time is heavily pressured in any event, a matter to which I give less emphasis on this occasion because matters to do with migration are of such great import, nonetheless, the applicant’s past conduct gave me no confidence that he would be able to obtain legal representation.  The past is, to an extent, the predictor of the future and I am afraid the applicant’s dilatory conduct has been so great that, in my view, the utility of an adjournment was not apparent. 

6. This then brings us to the merits of the matter.  Given the lack of articulation of the grounds of application, the first respondent’s outline of submissions correctly, in my view, points to the difficulty in determining the nature of the applicant’s complaints about procedural fairness and the difficulty of identifying the nature of his complaint about the consideration of his case.  All the Court has to go on is the Court Book (“CB”) and the Tribunal’s decision.  The Tribunal’s decision is a convenient place to start in these circumstances. 

7. I further note that the applicant did have legal assistance in preparing some of his materials.  A Statutory Declaration at CB214-217 is declared before a solicitor, Ms Psihogios-Billington, who is well known to the Court as a person active and skilled in the area of migration law.  Indeed, that party plainly assisted the applicant with drawing his original application. 

8. The Tribunal commenced its decision by setting out the Application for Review and dealing with Claims and Evidence at CB222-224. 

9. The applicant is a Tamil and a Shia Muslim and he asserted that he had been slapped in 2012 by one of two plain clothes policemen who had come to the shop where he worked.  The same policemen came to the shop and mistreated the applicant and his father on more than 10 occasions, including beating them, between January 2012 and the applicant’s departure from Sri Lanka in April 2012.  The applicant further claimed that, following his departure, the Criminal Investigation Division (“CID”) had come to inquire at the shop about where the applicant was and why he had left the country and he claimed a fear of return because of harassment by the CID at the airport. 

10. That matter was a matter raised again by the applicant in his oral submissions before the Court.  The applicant referred in his oral submissions, following my indication that the matter would not be adjourned, to the difficulties he might have if he returned to Sri Lanka. 

11. The Tribunal traversed the applicant’s interview with the delegate and the submissions made by the applicant’s then migration agent and came, at CB224, to the record of the interview at the Tribunal.  It is fair to say that the applicant repeated the allegations of assault by the policemen and the assertions of post-departure investigation by the CID. 

12. The Tribunal expressed some reservation about why the applicant had felt it necessary to get on a boat to Australia before exploring other potential options that appeared open to solve his problem, for example, by moving to a new area to live and work (paragraph 29, CB228). 

13. The Tribunal also explored alleged inconsistencies between evidence given at the Tribunal and matters in his written declaration.  The Tribunal traversed the possibility of the applicant’s relocation within Sri Lanka.  The Tribunal also put to the applicant information from UNHCR and DFAT, which indicated that Tamils or Muslims were not being persecuted because of their ethnicity or religion and that since the end of the war in May 2009, the situation had mostly improved for Tamils, albeit some discrimination continued (paragraph 41, CB229). 

14. The Tribunal wrote a s.424A letter to the applicant following the hearing detailing various matters that had arisen from the evidence the applicant’s father had given in his absence and the applicant responded.  The Tribunal, in its Findings and Reasons, accepted that the applicant was a citizen of Sri Lanka, of Tamil ethnicity and Muslim religion.  The Tribunal noted, at paragraph 52, the applicant’s inconsistent and contradictory evidence about what happened between January and April 2012.  The Tribunal also noted, at paragraph 54 CB234, the inconsistencies between the applicant's account and that given by his father at the hearing.  

15. I note that in the response to the s.424A letter, the applicant declared he wanted to withdraw parts of his previous evidence about what had happened at the restaurant (the critical preliminary event) and sought to adopt most of the evidence that his father had given.  The Tribunal found, at paragraph 58 CB235 that, considered cumulatively, the Tribunal concluded that the applicant was not a witness of truth or a reliable witness and that his accounts of the events upon which is protection claims were based was false.  The Tribunal had no confidence about any of the applicant’s evidence about the events that caused him to leave Sri Lanka (paragraph 59, CB236).  

16. The Tribunal, having considered the evidence, did not accept that the applicant suffered harm as a result of his religious beliefs or practice (paragraph 60 CB236).  The Tribunal also dismissed any risk of harm on the basis of association with the LTTE on the basis of country information which would seem to me to support that proposition. 

17. The Tribunal further considered, but dismissed on grounds that seemed to me to be at least open to it, the proposition that the applicant might face persecution or serious harm on the basis of Tamil ethnicity or being a Tamil Muslim who resided in a Tamil area or a young Tamil male from the militarised north west either singularly or cumulatively (paragraph 70, CB239).  

18. The Tribunal went on to consider, and dismiss in terms that seem to me unobjectionable, the applicant’s claims to being a Tamil business owner, claims based on his religion as a Muslim and as a failed asylum seeker.  The Tribunal also dismissed claims of possible persecution for unlawful departure from Sri Lanka. 

19. Considered cumulatively, the Tribunal concluded the applicant did not face persecution and was not a person to whom Australia owned Convention protection. The Tribunal then went on to consider whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958 (“the Act”).  As I read the Tribunal’s decision, it seems to me to be a conscientious endeavour to consider the matter against the differing criteria that that requires.  Given that the applicant was roundly disbelieved as to all his central claims, the Tribunal’s conclusion is not surprising. 

20. In these circumstances, there is nothing in the Tribunal’s decision that suggests that the Tribunal denied the applicant procedural fairness and or failed to grant the applicant a fair hearing.  The Tribunal’s record on its face appears to show a perfectly proper examination of the applicant’s claims.  He was represented at the hearing by a migration agent and received a s.424A letter to which he responded and I note that in that response, he sought to withdraw aspects of his earlier evidence. 

21. Next, there is nothing whatever to suggest that the Tribunal failed properly to consider all of the matters advanced by the applicant.  The Tribunal’s reasons for decision seem to me to cover every matter the applicant raised.  

22. Finally, it is not possible to say what the matter is in respect of which the applicant says he was denied an opportunity to comment on an issue that was in dispute.  Nothing in the Tribunal’s reasons and nothing self-evidently in what the applicant has said identifies any such matter. 

23. It follows that the application was not made out and must be dismissed with costs. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  14 August 2014