MZZZR v Minister for Immigration
[2014] FCCA 1551
•25 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZZR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1551 |
| Catchwords: MIGRATION – Judicial review of decision of Refugee Review Tribunal – Sri Lankan Tamil – protection visa application – whether denial of procedural fairness – whether failure to properly consider all claims – whether opportunity to comment on issue in dispute – whether jurisdictional error. |
| Legislation: Constitution (Cth), s.75(v) Immigrants and Emigrants Act 1945 (Sri Lanka) Migration Act 1958 (Cth), ss.5AA, 5(1), 36, 46A(1) and (2), 65(1), 91R, 422B, 425(1), 474, 476, 499, Part 7 Division 4 Migration Regulations1994 (Cth), Schedule 2, Part 866 |
| Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Minister for Immigration & Multicultural Affairsv Yusuf & Anor (2001) 206 CLR 323; [2001] HCA 30 MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2006] FMCA 1454 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 SZSYP v Minister for Immigration & Anor [2014] FCCA 7 |
| Applicant: | MZZZR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 126 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 11 July 2014 (Perth by video-link to Melbourne) |
| Date of Last Submission: | 11 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 25 July 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr C McDermott |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| For the Second Respondent: | Submitting appearance, save as to costs. |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 126 of 2014
| MZZZR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review under s.476 of the Migration Act 1958 (Cth)[1] of a decision of the second respondent, the Refugee Review Tribunal.[2] The Tribunal affirmed a decision of a delegate[3] of the first respondent, the Minister for Immigration & Border Protection,[4] to refuse to grant a Protection (Class XA) visa[5] to the applicant.
[1] “Migration Act”.
[2] “Tribunal” and “Tribunal Decision”. The Tribunal Decision is at Court Book (“CB”) 223-249.
[3] “Delegate” and “Delegate’s Decision”. The Delegate’s Decision is at CB 114-126.
[4] “Minister”.
[5] “Protection Visa”.
The Minister contends that the application for judicial review is without merit and ought to be dismissed.
Application
By application filed 22 January 2014[6] the applicant seeks an order that the Tribunal Decision be quashed, and a writ of mandamus issue to the Tribunal requiring it to determine the application for review according to law. The grounds of application are as follows:
1.The tribunal…denied me procedural fairness because they didn’t give me a fair hearing
2.The tribunal…failed to properly consider all my claims
3.The tribunal…didn’t give me an opportunity to comment on an issue that was in dispute.[7]
[6] CB 1-5.
[7] CB 3.
Factual background
The factual background to the application is as follows:
a)the applicant is a citizen of Sri Lanka of Tamil ethnicity;[8]
b)the applicant entered Australia as an “unauthorised maritime arrival”[9] on 29 May 2012;[10]
c)the applicant participated in an entry interview on 11 July 2012;[11]
d)on 22 September 2012 the Minister permitted the applicant to lodge a protection visa application,[12] and the applicant applied for the Protection Visa on 22 September 2012;[13]
e)on 2 January 2013 the Delegate refused to grant the Protection Visa;[14] and
f)on 18 December 2013 the Tribunal affirmed the Delegate’s Decision.[15]
[8] CB 9 and 88.
[9] As defined in s.5AA of the Migration Act.
[10] CB 226 at para.21.
[11] CB 17-30.
[12] CB 32; Migration Act, s.46A(2).
[13] CB 33-102.
[14] CB 114-126.
[15] CB 223-249.
Applicant’s claims
The applicant made a statutory declaration in support of his claims on 22 September 2012.[16]
[16] CB 82-86 (“Statutory Declaration”).
Written submissions were made on the applicant’s behalf by his representative, a solicitor and registered migration agent, to the Delegate on 19 October 2012,[17] and by another solicitor and registered migration agent (from the same firm as the former solicitor and registered migration agent) to the Tribunal on 11 March 2013,[18] 28 March 2013[19] and 5 December 2013.[20]
[17] CB 104-107.
[18] CB 152-178.
[19] CB 184-187.
[20] CB 217-218.
The applicant’s claims to engage Australia’s protection obligations are set out in the Tribunal Decision.[21]
[21] CB 227-229 and 236 at paras.25, 29 and 83.
In the applicant’s Statutory Declaration he made claims which the Tribunal summarised as follows:
a.The applicant grew up in Manuwangam village in Puttalm district. It is a majority Sinhalese area and only six Tamil families live in the village. He was always discriminated against because he was Tamil. He was sent to a Sinhalese school because there were no Tamil schools in the area. People would call him “Demalu” meaning Tamil. He was never allowed to participate in sports festival[s] because he was Tamil and people would give him and his mother dirty looks when they went shopping in town. During the war he regularly heard people say that Tamils should be disposed of.
b.In around 2000 the applicant’s older brother Sasindran disappeared. He supported a Tamil candidate for the UNP up for election by putting up posters and distributing leaflets. The UNP candidate lost the election and the applicant’s brother started receiving threats as a result of which he had to flee Chilaw. The applicant does not know his brother’s whereabouts but believes his mother speaks to the brother on the phone. People from the CID came to the house asking about the brother’s whereabouts. People harassed the applicant by asking him where his brother was hiding. He was young and did not understand what was going on.
c.In 2009 the applicant started driving a three wheeler which in 2010 was transferred to his brother Panni’s name. He got a spot to park his three wheeler but none of the other drivers who were all Sinhalese liked him or spoke to him because he was Tamil. He was threatened not to come back to the taxi stand.
d.On 31 July 2011 the applicant was at his parking spot when five or six people came up and started hitting his three wheeler and the applicant with steel pipes. They tried to drag him out of the three wheeler but his left foot got stuck under the brake pedal and sustained a deep cut. His ear was cut on some glass and they hit his head with sticks or pipes. They called him a Tamil and told him not to come back there anymore.
e.The applicant fainted and woke up in hospital where he stayed for five days. The police came and took a statement about the attack, which the applicant has attached. The police did not take any further action and the applicant believes they were protecting his attackers. He and his family were too scared to go to the police to inquire about what had been done.
f.The applicant returned home after being discharged from hospital but did not feel safe leaving the house. He is certain he would not have been attacked if he were Sinhalese and that the police would have investigated the attack.
g.He fears that the same people who attacked him before will do so again. It is very difficult to live in Sri Lanka as a Tamil and Tamils are not treated equally. He believes he is a target for attacks because of his ethnicity and the police will not protect him. Even though he speaks Sinhalese, people can tell he is Tamil from his accent.
h.He fears he will be suspected of being an LTTE supporter because he tried to flee Sri Lanka illegally.[22]
[22] CB 227-228 at para.25.
The applicant’s 11 March 2013 submission was read by the Tribunal, and the Tribunal noted the following:
a.The applicant fears harm on the basis of his Tamil race, his imputed pro-LTTE political opinion and his membership of the particular social group of ‘young Tamil males’ and ‘failed asylum seekers’.
b.the applicant’s circumstances should be considered cumulatively and the applicant is at risk due to the following factors: his ethnicity; the fact he is male; the fact he does not have a valid passport; and the fact he has fled to the West and sought asylum.
c.The applicant has contravened the Immigrants and Emigrants Act No 31 of 2006 by having illegally departed Sri Lanka. The Sri Lankan authorities have confirmed that persons … [who] depart Sri Lanka illegally are arrested and detained for 90 days pre-charge detention and there are substantial grounds for believing that the applicant would be detained for that period. If charges are laid, there is a potential conviction with a further one to five year prison sentence.
d.Given the prison conditions in Sri Lanka and consistent and credible reports of torture and other cruel, inhuman or degrading treatment that takes place at the hands of Sri Lankan authorities, there is a real risk that the applicant would face serious harm if returned to Sri Lanka.[23]
[23] CB 228-229 at para.29.
The applicant’s 28 March 2013 submission was summarised by the Tribunal as follows:
a.If the applicant returned to Sri Lanka he would be forced to continue his work as a three wheeler driver and would suffer the same discrimination in finding a parking space and physical harm from Sinhalese people;
b.The applicant fears earning less than Sinhalese taxi drivers;
c.Country information supported the applicant’s claims that the authorities are unable or unwilling to protect Tamils;
d.It would be unreasonable for the applicant to relocate due to his youth, lack of family ties, his preference for the Sinhalese language and his illiteracy in Tamil;
e.The applicant continues to have problems from people who used to target his brother.[24]
[24] CB 236 at para.83.
In relation to the 5 December 2013 submission from the applicant the Tribunal noted that it argued:
…that even if the applicant were held on remand for a short period [in the event of a return to Sri Lanka], evidence indicated that the applicant will be at the most heightened risk of significant harm, including torture, in the first few days of police custody.[25]
[25] CB 238 at para.95.
In its “Findings and Reasons” in the Tribunal Decision the Tribunal summarised the applicant’s claims as follows:
The applicant claims that he grew up as one of very few Tamils in a village outside of Chilaw, in the North West province of Sri Lanka. He claims that growing up he suffered discrimination and verbal abuse from Sinhalese members of his village. He claims that this discrimination prevented him from finding employment until his brother bought him a three wheeler. The applicant states that in 2011 he was attacked by Sinhalese while waiting for customers in his three wheeler. He also claims that a brother worked for a Tamil UNP candidate and had to flee the village in 2000. The applicant fears harm on the basis of his Tamil ethnicity, his imputed pro-LTTE political opinion arising from his Tamil ethnicity and his membership of the particular social group comprised of ‘returnees from the West/failed asylum seekers’. He has also claimed to fear harm as a result of his brother’s problems.[26]
[26] CB 238 at para.96.
The Court has read the documents referred to above which have been summarised and noted by the Tribunal in relation to the applicant’s claims, and considers the Tribunal’s summaries and note to be an accurate reflection of the applicant’s claims.
Tribunal Decision
Relevant law and procedure
The Tribunal Decision sets out the relevant law and procedure. The Tribunal observed that a visa could only be granted if the decision-maker, in this case the Tribunal, was satisfied that the prescribed criteria for the visa had been satisfied by reason of s.65(1) of the Migration Act.[27] Thereafter, the Tribunal, by reference to s.36 of the Migration Act and Part 866 of Schedule 2 to the Migration Regulations1994 (Cth)[28] set out the criteria that the applicant was required to meet under the refugee criterion in s.36(2)(a) of the Migration Act and the complementary protection criteria under s.36(2)(aa) of the Migration Act, and in respect of the latter had regard to the definition of “significant harm” as defined for the purposes of s.36(2A) of the Migration Act in s.5(1) of the Migration Act.[29] The Tribunal also had regard to the relevant ministerial direction made under s.499 of the Migration Act, and in particular the requirement to take account of policy guidelines prepared by the executive in relation to complementary protection and refugee law guidelines, as well as any country information assessment prepared by the Department of Foreign Affairs and Trade[30] for protection status determination purposes.[31] In relation to the refugee criterion the Tribunal referred to the relevant provisions of Article 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees [32] and to the provisions of s.91R of the Migration Act.
[27] CB 224 at para.4.
[28] “Migration Regulations”.
[29] CB 224-226 at paras.4-17.
[30] “DFAT”.
[31] CB 226 at para.19.
[32] “Convention”.
Claims prior to the Tribunal hearing
In relation to the claims made by the applicant and the evidence in support of them prior to the Tribunal hearing it suffices to observe that the Tribunal Decision indicates that the Tribunal had regard to:
a)the applicant’s entry interview on 11 July 2012 with the Department;[33]
b)the applicant’s Protection Visa application, and the terms of the annexed Statutory Declaration, together with written submissions made subsequently;[34]
c)the terms of the Delegate’s Decision following the applicant’s interview by the Delegate on 29 September 2012;[35] and
d)the receipt of written submissions from the applicant’s solicitor and registered migration agent on 11 March 2013,[36] the terms of which have been noted above.[37]
[33] CB 226-227 at paras.22-23.
[34] CB 227-228 at para.24-26.
[35] CB 228 at paras.27-28.
[36] CB 228-229 at para.29.
[37] See para.9 above.
The Tribunal hearing
At the Tribunal hearings on 15 March 2013 and 5 December 2013 the applicant appeared with the assistance of a Sinhalese and English interpreter, and the applicant’s solicitor and registered migration agent appeared by telephone.[38]
[38] CB 229 at paras.30-31 and CB 236 at para.84.
The Tribunal, at the outset of the hearing on 15 March 2013, explained its role, the proceedings and the law to be applied.[39]
[39] CB 229 at para.32.
At the Tribunal hearing on 15 March 2013 the Tribunal asked the applicant about:
a)his background and family, including what members of his family did for a living, and in particular, his elder brother’s work as the driver of a van for hire;[40]
[40] CB 229 at paras.32 and 37.
b)his brother who disappeared in 2000 after having worked for a Tamil MP, and the fact that he did not speak to his brother after he disappeared until his mother gave him his brother’s phone number in England after the applicant came to Australia;[41]
[41] CB 230 at para.36.
c)his schooling, which went to year 9, and his being part of an ethnic Tamil minority at his school;[42]
[42] CB 230 at para.38 and CB 231 at para.42.
d)what he did after he left school, and in particular his obtaining of work after his elder brother purchased him a “three wheeler” in 2009;[43]
[43] CB 230 at para.38.
e)why he feared returning to Sri Lanka, to which the applicant replied that:
i)he was attacked when he had a three wheeler;
ii)he was a Tamil who studied in a Sinhalese school;
iii)that the army was on the side of the Sinhalese in his village;
iv)when he came out of the house he could hear people saying that Tamils should be killed;
v)because “he is Tamil he cannot live in his own village in happiness”; and
vi)he cannot go back because people in the village will do things to him and that there are white vans that take people away;[44]
[44] CB 230-231 at para.41
f)the problems that the applicant faced as a Tamil, to which the applicant indicated that he:
i)did not go out of his house but stayed inside because he was a Tamil; and
ii)was afraid because of his brother’s disappearance and because other Tamils in other areas had been taken by vans;[45]
[45] CB 231 at paras.44-48.
g)the applicant’s married sisters, and the employment history of the family, with the Tribunal noting that both the father and the applicant’s older brother worked and were able to find jobs, although there are difficulties obtaining manure for the banana farm, and that the father’s younger brother (the applicant’s uncle) works in the markets and has “worked there for a long time”;[46]
[46] CB 232 at para.52.
h)in relation to the brother who disappeared, to which the applicant indicated that:
i)people were still angry with his brother for having worked for a Tamil MP of the UNP Party;
ii)the applicant still faces problems in the village because of the brother’s political activity;
iii)people still come to the house asking for his brother;
iv)that he is afraid because of what people say to him;[47] and
v)“it is easy for anyone to kill them [Tamils]”;[48]
i)his three wheeler business, and how it was financed and how a parking space was obtained, and the circumstances in which he was attacked in 2011 following threats made to him;[49]
j)the applicant’s subsequent hospitalisation and complaints to police about the attack upon him, and about which the applicant says the police did nothing because he was a Tamil;[50]
k)why he might be imputed with pro-LTTE political views;[51]
l)fears about his being harmed as a consequence of his illegal departure from and return to Sri Lanka;[52] and
m)whether he might relocate to Tamil areas in Sri Lanka.[53]
[47] CB 232-233 at paras.54-58.
[48] CB 232 at para.57.
[49] CB 233-234 at paras.59-64.
[50] CB 234 at paras.65 and 68.
[51] CB 235 at para.72.
[52] CB 235 at paras.72-73 and 78-80.
[53] CB 235 at paras.74 and 76-77.
At the Tribunal hearing on 5 December 2013 the applicant was specifically asked by the Tribunal about matters relating to his illegal departure, in light of country information available to the Tribunal which had not previously been raised with the applicant. Country information was put to the applicant indicating that:
a)persons who returned to Sri Lanka having departed illegally:
i)were charged with an offence, but only punished by way of a fine; and
ii)were only affected by adverse prison conditions whilst on remand for a short period; and
b)that there was no official discrimination against Tamils, and that high unemployment was due to economic conditions not discrimination.[54]
[54] CB 236-237 at paras.84-92.
The Tribunal’s findings and reasons
In its “Findings and Reasons” in the Tribunal Decision the Tribunal:
a)found that the applicant’s evidence was “generally consistent and credible”, but that some of his evidence was inconsistent with country information;[55]
[55] CB 238 at para.99.
b)noted that the applicant “appeared sad and forlorn and when giving evidence…stated more than once that he has never had a day’s happiness in his life”, and whilst sympathetic to his situation, the Tribunal considered the applicant had exaggerated some of his evidence and his claimed fears;[56]
[56] CB 238 at para.99.
c)found that the applicant’s perceived differential treatment received at school did not constitute serious or significant harm and was not the main reason why he left school in year 9;[57]
[57] CB 239 at para.101.
d)found that:
i)although the applicant would have been subject to some discrimination in his village, did not accept that the applicant would have been subject to abuse on a regular or daily basis as claimed in the years after the Civil War ended in May 2009; and
ii)DFAT country information described ethnic tension and discrimination amongst communities as “rare” and that there were no official laws with discriminatory impacts for Tamils,
and therefore did not accept that the applicant was subjected to threats or abuse because of his Tamil ethnicity or perceived support for the Liberation Tigers of Tamil Eelam[58] by Sinhalese villagers after the Civil War had ended;[59]
[58] “LTTE”.
[59] CB 239 at para.102.
e)did not accept that the applicant had to stay indoors and was unable to leave his home at night for fear of abuse by other villagers, and found that he would not be subject to threats or abuse in the future;[60]
[60] CB 239 at para.103.
f)found that the applicant, as a young Tamil male from the North West of Sri Lanka, lacked a specific adverse profile, and therefore would not face a real chance of serious or significant harm by being abducted in a white van or being killed by the Sri Lankan Army;[61]
[61] CB 239-240 at para.104.
g)found that because country information was inconsistent with the applicant’s claim that his family was discriminated against in terms of employment and an ability to make a living, rejected those claims, and:
i)noted the applicant’s evidence that his family were able to subsist on the basis of their farming work; and
ii)did not accept that the applicant was prevented from obtaining employment because the village headman in his village “did not like giving the necessary forms to Tamils”;[62]
[62] CB 240 at paras.105 and 106.
h)accepted that a 2008 incident in which the applicant claimed to have been “pushed, hit and kicked” by drunk boys while the applicant was riding his bicycle, had occurred as claimed, but that this was an “isolated, drunken attack”;[63]
[63] CB 240 at para.107.
i)summarised the applicant’s claim about the 2011 three wheeler incident, noting that he was “attacked by six people who referred to his Tamil ethnicity”;[64]
[64] CB 240-241 at para.108.
j)had regard to the inconsistencies in the applicant’s evidence as to how long the applicant had:
i)had difficulty obtaining a car parking space for his three wheeler, as his statutory declaration referred to a period of three months, whereas at hearing before the Tribunal the applicant stated that it was six months; and
ii)been operating the three wheeler, as his written claims indicated he began driving in 2009, whereas at the Tribunal hearing the applicant stated that he started driving in 2010;[65]
[65] CB 241 at para.109.
k)found that:
i)the applicant was racially abused in the 2011 incident, but that the applicant’s race was not the essential and significant reason for the attack, or for any of the behaviour of which the applicant claimed he was a victim;
ii)the attack was “an isolated event and not essentially and significantly motivated by his race or imputed political opinion”; and
iii)rejected the applicant’s assertion that the attack would not have occurred if he were Sinhalese, based on the applicant’s evidence regarding his experience working as a three wheeler driver for a year before the attack, as well as the applicant’s “general experience of living in his village, as discussed above”;[66]
[66] CB 241 at para.110, and compare CB 239-240 at paras.101, 102, 105 and 106.
l)rejected the applicant’s evidence as to the conduct of the police after the 2011 incident, and concluded that the applicant was not denied state protection for a Convention reason, and that the applicant’s family were not “too scared” to follow up on the investigation with the authorities;[67]
[67] CB 241 at para.111
m)expressed doubt that the applicant remained in his home for the whole time from August 2011 until his departure from Sri Lanka in May 2012. The Tribunal, however, accepted the applicant did not return to work as a three wheeler driver. The Tribunal considered it implausible that the persons who had attacked him “so that he would not take their business” would enquire as to his whereabouts after telling him to leave;[68]
n)found that the applicant would not face a real chance of serious harm on the basis of his Tamil ethnicity or because he would be imputed with a pro-LTTE political opinion. In making this finding, the Tribunal stated that the discrimination faced by Tamils in Sri Lanka did not amount to “serious harm”, and that “certain profiles and not simply Tamil ethnicity potentially give rise to a real chance of serious harm”,[69] and said:
…the Tribunal finds that the attack against the applicant in 2011 was not for the essential and significant reason of a Convention ground. The Tribunal notes that the [Delegate’s] decision record…indicates that the applicant stated that his three wheeler was written off after the attack. Accordingly, the Tribunal finds that the applicant will not return to this type of business or to the parking lot if he returns to Sri Lanka. The Tribunal does not accept the applicant’s representative’s submissions that the applicant would have to return to driving a three wheeler; the applicant has only been in this job for one or two years at best and the Tribunal does not accept that the applicant would not be able to find other employment, noting that his relatives work in varied jobs. As the Tribunal is satisfied that the motivation for this attack was to avoid the applicant taking business away from other three wheeler drivers, the Tribunal finds that the chance that the applicant would face serious harm from the people who previously attacked him is far-fetched and remote.[70]
o)found that the discrimination suffered by the applicant as a Tamil (or as a perceived LTTE supporter) in the past or that he may suffer in the future, did not constitute significant harm, and said:
The Tribunal accepts that the attack on the applicant constituted significant harm. However, given its reasoning in paragraph 114 regarding the applicant’s future employment if he returns to Sri Lanka, the Tribunal does not accept that as a necessary and foreseeable consequence of being returned to Sri Lanka, there are substantial grounds for believing that the applicant will suffer significant harm related to driving a three wheeler. Accordingly, the Tribunal does not accept that there is a real risk that the applicant would suffer significant harm as a Tamil or perceived LTTE supporter.[71]
p)considered whether the applicant’s claims in relation to his brother’s past political activities, which the Tribunal found to be “low level” political activities such as putting up posters and distributing leaflets, gave rise to a real chance of the applicant suffering serious or significant harm upon return to Sri Lanka. The Tribunal concluded that these claims did not engage s.36(2) of the Migration Act.[72]
[68] CB 241 at para.112.
[69] CB 242 at para.113.
[70] CB 242 at para.114.
[71] CB 242 at para.115.
[72] CB 242-243 at paras.116-118.
In relation to the applicant’s claim of future risk of harm as a returnee or failed asylum seeker in the Tribunal Decision the Tribunal:
a)having considered 2012 country information from DFAT and the UK Home Office, found that the applicant would not be imputed with any connection to the LTTE as a young Tamil male, and that he would not be subjected to detention or interrogation;[73]
[73] CB 243-244 at paras.120-121.
b)did not accept, on the basis of 2012 DFAT country information that “Tamils returning to Sri Lanka are subjected to the same entry procedures as any other citizen,[74] or that “standard questioning and security checks” constituted serious or significant harm;[75]
[74] CB 243 at para.120.
[75] CB 244 at para.123.
c)found that the applicant would not face a real chance of serious or significant harm arising from questioning at the airport;[76]
[76] CB 243-244 at paras.120-122.
d)found that the applicant would not be imputed with a pro-LTTE or anti-government political opinion from having sought asylum in Australia, and would not attract adverse attention as a consequence of seeking asylum;[77]
[77] CB 244 at para.124.
e)rejected the applicant’s claim that he would face a real chance of serious or significant harm as a failed asylum seeker or returnee;[78]
[78] CB 244-245 at para.125.
f)considered country information pertinent to the applicant’s claim to fear harm arising from his illegal departure from Sri Lanka;[79]
[79] CB 245-246 at paras.126-132.
g)noted that the applicant had departed Sri Lanka without valid travel documentation, and that he would be likely to be charged with an offence under the Immigrants and Emigrants Act 1945 (Sri Lanka);[80] but that the offence provision in the I & E Act Sri Lanka was a law of general application which does not give rise to persecution under the Convention;[81]
h)considered that the applicant would be held in remand for a short period “from between one day to several days”, if he is charged with the offence, and that the applicant’s family could meet the guarantee of bail and that the applicant would be granted bail;[82]
i)considered country information about Sri Lankan prison conditions and treatment of Tamil and Sinhalese prisoners;[83]
j)considered that the applicant would not face a real chance of serious harm “whilst on remand for a short period of time” arising from his being perceived as associated with the LTTE;[84]
k)considered that the applicant being remanded for a short period of time, between one and several days, did not constitute significant harm;[85]
l)concluded that the there was less than a real chance of significant harm arising from the applicant being on remand for a short period arising from illegal departure offences. In making this finding, the Tribunal distinguished the applicant’s representative’s submission referring to country information which referred to torture applied to extract a confession, which was not the position here where the applicant’s illegal departure status was not likely to be in dispute;[86]
m)made the alternative finding that the prison conditions were not intentional, but a consequence of a lack of resources, and the Sri Lankan Government was seeking to improve prison conditions;[87]
n)found that there were no substantial grounds for believing that there was a real risk that the applicant would suffer significant harm while on remand for offences relating to illegal departure from Sri Lanka;[88]
o)found that the applicant would not suffer significant harm as a result of being convicted of the relevant offence, and noted that the most likely punishment was a fine, not a prison sentence, and that there was not a real risk that the applicant would receive a prison sentence;[89] and
p)did not accept that the imposition of a fine (a fine the Tribunal found could be paid by his family), constituted significant harm,[90] and that there were not substantial grounds for believing that there was a real risk that the applicant would suffer significant harm if he was charged upon return to Sri Lanka with departing Sri Lanka in breach of its immigration laws.[91]
[80] CB 246 at para.133 (“I & E Act Sri Lanka”).
[81] CB 246 at para.134.
[82] CB 246 at para.135.
[83] CB 246 at para.136.
[84] CB 246 at para.137.
[85] CB 247 at para.139.
[86] CB 247 at para.138.
[87] CB 247 at para.140.
[88] CB 247 at para.141.
[89] CB 248 at para.142.
[90] CB 248 at para.143.
[91] CB 248 at para.144
In the Tribunal Decision the Tribunal concluded that:
a)“either separately or cumulatively”, the applicant’s claims did not engage s.36(2)(a) of the Migration Act;[92]
b)“both separately and cumulatively”, the applicant’s claims did not engage s.36(2)(aa) of the Migration Act;[93] and
c)the applicant was not owed protection obligations under s.36(2) of the Migration Act.[94]
[92] CB 248 at para.145.
[93] CB 248 at para.146.
[94] CB 248-249 at paras.147-149.
The Tribunal therefore affirmed the Delegate’s Decision.[95]
[95] CB 149 at para.150.
Applicant’s submissions
The Court notes that contrary to the Court’s orders of 16 April 2014 the applicant did not file written submissions.
At hearing when asked to make submissions on the grounds of review or to explain what jurisdictional errors he alleged, the applicant submitted that:
a)he would be killed if he were returned to Sri Lanka as a consequence of the outcome of his case; and
b)he had put before the Tribunal everything that happened and he knew that there was enough evidence before the Tribunal and did not understand why the Tribunal had decided he was not a refugee.
Ministers submissions
The Minister submits that:
a)the Tribunal fulfilled its statutory obligations under Part 7 Division 4 of the Migration Act in the conduct of the review by providing the applicant with an opportunity to give evidence and put arguments, and by giving detailed consideration to all the applicant’s claims;
b)reasonable minds may differ in relation to the issues under review, but the Tribunal was neither irrational nor unreasonable in its consideration of the applicant’s claims, interpretation of the country information, and determination of whether protection obligations arose under s.36(2) of the Migration Act;
c)the Tribunal determined that the applicant’s Tamil ethnicity was not the essential and significant reason for the harm that occurred to him in 2011. The Tribunal’s findings[96] contemplate that the applicant’s 2011 attackers wanted the applicant to withdraw from the market place as he was taking their business. The Tribunal observed that the event appeared to be “isolated” and specifically rejected the applicant’s claim that the attack would not have occurred had he been Sinhalese. These were findings of fact that were open to the Tribunal;
d)the Tribunal’s findings about the risk to the applicant on his return as a person who had illegally departed from Sri Lanka were also open to the Tribunal;[97] and
e)the applicant has provided no particulars in support of his grounds of judicial review, which are generic in nature, and as such do not identify a jurisdictional error.
Consideration
[96] CB 241 and 242 at paras.110 and114.
[97] Citing SZSYP v Minister for Immigration & Anor [2014] FCCA 7.
Jurisdictional error
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error.[98] The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor.[99]
[98] Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
[99] (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
The applicant’s submissions at hearing:[100]
a)amounted to no more than a plea for this Court to undertake impermissible merits review, contrary to well-established principles of judicial review;[101] and
b)neither alleged nor identified any jurisdictional error in the Tribunal Decision.
[100] See para.25 above.
[101] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259.
Ground 1 – procedural fairness
Ground 1 alleges a denial of procedural fairness by reason of a failure to afford a fair hearing to the applicant.
The Tribunal complied with its obligations under s.425 of the Migration Act by validly inviting the applicant to a hearing, which he attended on 15 March 2013 and 5 December 2013, together with his solicitor and registered migration agent, who appeared by telephone.[102] The Tribunal specifically raised with the applicant during the hearing the concerns that it had with his claims and evidence.[103] In addition, the Tribunal received submissions from the applicant’s representative after both hearings.[104] Furthermore, the applicant was on notice of determinative issues arising on the review from the Delegate’s Decision.[105] Accordingly, no breach of s.425(1) of the Migration Act is apparent.[106] Significantly, there is no evidence of any complaint made at any stage during the Tribunal hearing, from either the applicant, or, perhaps more significantly, his solicitor and registered migration agent, alleging a denial of procedural fairness. Furthermore, there is nothing apparent from the Tribunal Decision which would indicate a failure to afford the applicant procedural fairness or a fair hearing in any respect. For these reasons, the Court is satisfied that there was no jurisdictional error by reason of a denial of procedural fairness because of an unfair hearing by the Tribunal. The Tribunal complied with the limited procedural fairness obligations under s.422B of the Migration Act.
[102] CB 229 at paras.30-31 and CB 236 at para. 84, and see paras.16-19 above.
[103] CB 229-236 at paras.32-82 and CB 236-238 at paras.85-94.
[104] CB 236 at para.83 and CB 238 at para.95.
[105] CB 124, where at Part B, Section 4 of the Delegate’s Decision the Delegate found that the applicant did not have a real or perceived association with the LTTE in Sri Lanka, and that there was no evidence that the applicant had a political profile prior to his departure from Sri Lanka, nor had he been politically active since his departure from Sri Lanka, and there was no evidence that failed asylum seekers or returnees from a Western country to Sri Lanka faced persecution for any Convention reason. Further, that there were no substantial grounds for believing, that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there was a real risk that the applicant would suffer significant harm: Delegate’s Decision, Part C, Section 4 at CB 126.
[106] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63.
For the above reasons ground 1 has not been made out.
Ground 2 – failure to consider claims
Ground 2 alleges a failure by the Tribunal to properly consider all of the applicant’s claims. The alleged failure was not particularised by the applicant.
In Dranichnikov v Minister for Immigration & Multicultural Affairs[107] the High Court found jurisdictional where:
a)a differently constituted Tribunal misunderstood, and failed to deal with, the case presented to it, by reason of Mr Dranichnikov being a member of a special group, not just of Russian business people, but of Russian business people involved in public protest against state sanctioned corruption and violence;[108]
b)the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice;[109] and
c)a failure to respond to a substantial, clearly articulated argument relying upon established facts was also a constructive failure to exercise jurisdiction.[110]
[107] (2003) 77 ALJR 1088; [2003] HCA 26 (“Dranichnikov”).
[108] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at para.23 per Gummow and Callinan JJ.
[109] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at paras.24-25 per Gummow and Callinan JJ.
[110] Dranichnikov ALJR at 1092-1093 per Gummow and Callinan JJ; HCA at paras.24-25 and 32 per Gummow and Callinan JJ.
The High Court said in Dranichnikov that failures of the type identified above entitled a court exercising jurisdiction under s.75(v) of the Constitution to consider exercising the discretion to grant relief.[111]
[111] Dranichnikov ALJR at 1093 per Gummow and Callinan JJ; HCA at paras.33-34 per Gummow and Callinan JJ.
In Htun v Minister for Immigration & Multicultural Affairs[112] the Federal Court observed, in the context of claims made with respect to an application for a protection visa, that:
To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.[113]
[112] (2001) 194 ALR 244; [2001] FCA 1802 (“Htun”).
[113] Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
Even where a claim is not necessarily articulated expressly in oral submissions at a hearing before the decision-maker, the “clarity of … expression of … fear in … [an] application for review and the existence of objective material put forward … to support … [a claim]” means that there is an extant claim.[114]
[114] Htun ALR at 259 per Allsop J; FCA at para.42 per Allsop J.
What is required of the decision-maker was described in practical terms in MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No.2)[115] as the decision-maker “embark[ing] on the process of actually fixing its mind upon the applicant’s claims”[116] and of “a specific consideration of the claim”.[117]
[115] [2006] FMCA 1454 (“MZXIV (No.2)”).
[116] MZXIV (No.2) at para.44 per Riley FM.
[117] MZXIV (No.2) at para.45 per Riley FM.
A Dranichnikov or Htun type claim cannot succeed in this case. The Tribunal set out and explained its understanding of each of the claims made by the applicant. Having thus identified each of the claims, the Tribunal then considered each claim. The Tribunal did so comprehensively and in considerable detail in its “Findings and Reasons”[118] which are summarised above.[119]
[118] CB 238-248 at paras.96-146.
[119] See paras.20-21 above.
For the above reasons ground 2 has not been made out.
Ground 3 – no opportunity to comment
Ground 3 asserts that the Tribunal did not give the applicant an opportunity to comment on an issue that was in dispute.
This ground is not particularised, and when the applicant was asked at hearing for submissions in relation to the grounds of review, nothing was said as to how it was alleged that the Tribunal allegedly denied the applicant an opportunity to comment on an issue that was in dispute.
For reasons set out above, it is apparent that the Tribunal canvassed all of the issues that were raised by the applicant, and this ground of review cannot succeed either in respect of a Dranichnikov or Htun type claim or as a claim of an alleged denial of procedural fairness. For the above reasons, ground 3 is not made out.
Conclusions and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error,[120] and in those circumstances there must be an order dismissing the application.
[120] Migration Act, ss.474 and 476.
The Court will hear the parties as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 25 July 2014