MZZYO v Minister for Immigration

[2014] FCCA 1892

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZYO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1892

Catchwords:
MIGRATION – Application for review of the Refugee Review Tribunal decision – application lodged out of time – no merit in substantive application – leave to extend time refused.

Legislation:

Migration Act 1958 (Cth), s.477(2)

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 58 ALD 609
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

Applicant: MZZYO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2297 of 2013

Judgment of: Judge Whelan

Hearing date: 30 June 2014

Date of Last Submission: 30 June 2014

Delivered at: Melbourne

Delivered on: 30 June 2014

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth), be refused.

2. 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 2297 of 2013

MZZYO

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 a judicial review (“the application”) of a decision by the Refugee Review Tribunal (“the Tribunal”) to affirm a decision of a delegate of the Minister not to grant the Applicant a protection visa.[1] The application was lodged two weeks out of time, and the Applicant seeks an extension of time under s.477(2) of the Migration Act 1958 (Cth) (“the Act”).

   [1] Application filed 20 December 2013.

Background

1. The Applicant is a Tamil Hindu born in the northwest province of Sri Lanka who entered Australia on 15 July 2012 as an irregular maritime arrival. The Applicant lodged an application for a protection visa on 8 October 2012, and attended an interview with the delegate on 11 October 2012. On 20 February 2013, the delegate rejected the application and an application was made for a review of that decision by the Tribunal.

2. The Applicant appeared before the Tribunal on 15 April 2013 to give evidence and put arguments. The Applicant was assisted by an interpreter and represented by his migration agent. On 31 October 2013, the Tribunal affirmed the delegate’s decision and the Applicant then filed this application for judicial review with the Court on

   
   

   20 December 2013. 

3. The Applicant claims were contained in:

   ·Hs interview with the delegate;

   ·A statutory declaration of 8 October 2012;[2] and

   ·A written submission to the Tribunal by his migration agent.[3] 

   [2] Court Book filed 4 April 2014 at pp.83-85.

   [3] Ibid at pp.94-109.

4. The Applicant claimed that there was an army camp located close to his village and that he was prevented from going to school because the army camp personnel (“the army”) forced him to do chores for them up to four or five times a week. In June 2012, the army were unable to find the Applicant when they wanted him to do work for them, and came to his house later, beat him and fired their guns in the air. This frightened the Applicant and caused him to develop a fever for a week. 

5. The Applicant submits that his village also had a problem with

   
   

   ‘grease devils’. One night, a ‘grease devil’ came to the Applicant’s family home and held a knife to their throats. He only ran away when the Applicant’s mother screamed. 

6. Just before departing for Australia, the Applicant was travelling in a van and was arrested by the police. He was tortured and questioned as to why he was going to Australia. After he was released, the army came to his home and threatened that, if he tried to leave, they would shoot him. 

7. Additional claims were made in the Applicant’s statutory declaration of 8 October 2012 including that:

   ·The army would steal the water pump from his house and use it at the camp;

   ·After he was detained and tortured by the police, his mother made arrangements for him to leave the country;

   ·He feared being tortured and killed;

   ·He feared being mistreated by the army or kidnapped by the Criminal Investigation Division (“the CID”) or police;

   ·As he had left the country illegally, upon return, he would be imprisoned; and

   ·The Applicant claimed as a young Tamil male, he would be harmed because the authorities were all Sinhalese and Tamils therefore had no security.[4]

   [4] Court Book filed 4 April 2014 at pp. 83-84.

8. The Applicant’s migration agent made additional claims that:

   ·Tamils were imputed with the political opinion of being Liberation Tigers of Tamil Eelam (“the LTTE”) supporters and/or members by reason of their ethnicity;

   ·The applicant would be regarded as a member of the LTTE should he return to Sri Lanka; and

   ·The Applicant would face persecution as an asylum seeker in Australia, a member of the Sri Lankan Tamil community and a young Tamil male.

   The Applicant claimed he would face a real risk of significant harm from the army and anti-Tamil organisations associated with the government.[5] 

   [5] First Respondent’s Contentions of Fact and Law filed 20 June 2014, pp.3-4 at para.14.

9. At the Tribunal hearing, the Applicant raised two new claims:

   ·First, some four months after his departure for Australia, the CID had come to his house on three occasions looking for him.

   ·Second, he also claimed that Buddhist monks had stopped Hindus at the Applicant’s local temple from attending the temple for worship. 

The Tribunal’s decision

1. The Tribunal made findings in relation to each of the Applicant’s claims. A core finding was that the Applicant’s evidence in relation to his claims about being forced to work for the army was very much lacking in credibility. This undermined his general credibility as a witness. The Tribunal’s detailed consideration of his evidence with respect to this and the Tribunal’s conclusions are contained at paragraphs 63, 67 and 68 of the Tribunal’s decision.[6] The Applicant’s claims about being forced to work for the army and threats and mistreatment suffered by the Applicant and his family were all rejected by the Tribunal on credibility grounds.

   [6] Court Book filed 4 April 2014 at p.270 and pp.271-272.

2. The Tribunal accepted that, in the period around August 2011, a series of attacks were reported in Sri Lanka and that the public and the media dubbed those responsible ‘grease devils’. However, the Tribunal found far-fetched the Applicant’s account of what he said occurred when ‘grease devils’ invaded his house. That claim was therefore rejected.[7] 

   [7] First Respondent’s Contentions of Fact and Law filed 20 June 2014, p.5 at para.20.

3. With respect to the Applicant’s claim of having been detained and tortured by the police when he was preparing to leave for Sri Lanka, the Tribunal found that these reports were inconsistent with country reports about what occurred when people were intercepted seeking to leave Sri Lanka. Further, the Tribunal did not find convincing the suggestion that the CID had come to the Applicant’s house three times since his departure to Australia. The Tribunal did not accept that the Applicant was of such interest to the Sri Lankan authorities that his family would be visited by the CID or by the army.[8] 

   [8] Ibid at paras.21-22.

4. The Tribunal, further, did not accept that the Applicant had ever suffered any difficulties in relation to his religious faith or practice or was stopped from going to the temple. 

5. The Tribunal considered country information including the

   
   

   December 2012 United Nations High Commissioner for Refugees guidelines. It was not satisfied that the Applicant would face a real chance of persecution in Sri Lanka for reason of his membership of particular social groups such as young Tamil males or Sri Lankan Tamils. The Tribunal was not satisfied that the Applicant would face persecution in Sri Lanka for reason of his Tamil ethnicity alone.[9] 

   [9] First Respondent’s Contentions of Fact and Law filed 20 June 2014, pp.5-6 at para.25.

6. The Tribunal accepted that upon his return to Sri Lanka the Applicant would be questioned by authorities and might be detained for up to a few days pending a bail application. It accepted that the Applicant might be held in conditions on remand that were crowded and uncomfortable:

   The Tribunal accepted that the applicant may be charged and prosecuted under a law of general application on account of his illegal departure, but that in practice people are fined for such offences. The Tribunal found that there was not more than a remote chance of the applicant being seriously harmed during a short stay in prison.[10]

   [10] Ibid, p.6 at para.27.

7. Further, the law with respect to illegal departure was not being applied in a discriminatory fashion. The Tribunal made similar findings with respect to whether the Applicant would suffer significant harm in relation to the complementary protection obligations. 

Grounds for Review

1. The Applicant nominated a single ground for review; that is that “[t]he Court failed to consider all of my case properly”.[11] I take it that by “the Court”, the Applicant actually meant the Tribunal. His oral submissions today essentially went to two things:

   ·The fact that his lawyer was on the phone and not present at the Tribunal; and

   ·The merits of his claim. 

   [11] Application filed 20 December 2013 at p.3.

The First Respondent’s Submissions

1. The Court may extend time under s.477(2) of the Act if an application has been made and the Court is satisfied that it is necessary in the interest of the administration of justice to make the order. The

   
   

   First Respondent submitted that part of that process requires the Court to give consideration to the merits of the substantive application.[12] 

   [12] First Respondent’s Contentions of Fact and Law filed 20 June 2014, p.7 at para.32.4.

2. The application is essentially an expression of disagreement with the Tribunal’s decision and a hope that the Court might view the Applicant’s claim differently. The First Respondent submits that “[t]he applicant was provided with an opportunity to provide evidence and put arguments to the Tribunal, and was assisted in doing so by his migration agent”.[13] Given the agent was on the telephone, the Applicant was offered breaks to consult but elected to proceed. The First Respondent further submits:

   The Tribunal gave detailed consideration to each of the applicant’s claims, discussed the country information with him, provided him with appropriate opportunities to respond to information that would be the reason, or part of the reason, for affirming the decision to refuse his application, and made findings that were open to it on the materials.[14]

   [13] Ibid at para.35.

   [14] Ibid at para 36.

3. The First Respondent submits that the Tribunal’s determination of the Applicant’s claims was based essentially on its findings about the credibility of the Applicant’s evidence. The First Respondent submitted by reference to appropriate case law that a credibility finding is a finding of fact and one for the Tribunal.[15] The First Respondent further submitted that the weight to be given to country information is a matter for the decision-maker alone, that is, for the Tribunal.[16] 

   [15] Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 58 ALD 609.

   [16] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10.

Conclusions

1. The starting point for a consideration of the Applicant’s claim for an extension of time under s.477(2) of the Act is the length of delay and whether the Applicant has shown an acceptable explanation for the delay. The delay in this case was some two weeks after the time that the application should have been lodged. In his affidavit in support of his application,[17] the Applicant stated he sought advice from the Asylum Seeker Resource Centre (“the ASRC”) on or about

   
   

   17 November 2013. The ASRC was unable to provide the Applicant with legal assistance, and he therefore sought assistance from

   
   

   Victoria Legal Aid (“VLA”) in December 2013. The Applicant was advised by the VLA to request an extension of time.[18] I accept that he has shown an acceptable reason for the delay. 

   [17] Affidavit of MZZYO filed 20 December 2013.

   [18] Affidavit of MZZYO filed 20 December 2013, p.2 at paras.4-5.

2. I turn now to the question of the merit of the Applicant’s case. A judicial review of a decision of the Refugee Review Tribunal is not a rehearing of the substantial merit of the Applicant’s case. The Applicant must identify a jurisdictional error on the part of the Tribunal.

3. The Tribunal appears to have accurately summarised the particulars of the Applicant’s claims by reference to:

   ·The Applicant’s statement;

   ·His interview with the Department;

   ·The submissions of his migration agent; and

   ·The evidence given at the hearing. 

4. The Tribunal gave consideration to the Applicant’s evidence, but found that much of it was lacking in credibility. The Tribunal put to the Applicant the evidence which it considered to be contradictory, and the information that would, subject to his comment or response, be part of the reason for affirming the decision to refuse to grant him a protection visa. The Tribunal did not consider the explanations given by the Applicant to be adequate. The Tribunal rejected a number of the Applicant’s claims, based on:

   ·The Tribunal’s assessment of his credibility;

   ·Contradictions in the Applicant’s own evidence; and

   ·Contrary country information.

5. The Tribunal’s consideration of the Applicant’s claim ran for some

   
   

   76 paragraphs.[19] It is therefore hard to see how the Tribunal failed to properly consider the Applicant’s case. On the material before me, I am not satisfied that the Tribunal made any jurisdictional error, and therefore, the substantive application lacks merit. For these reasons, I am not persuaded that it is in the interests of justice to extend time, and the application for leave under s. 477(2) of the Act is dismissed.

   [19] Court Book filed 4 April 2014 at pp.266-292, paras.48-125.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date:  22 August 2014