MZZZW v Minister for Immigration & Anor

[2015] FCCA 440

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZZW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 440

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – application dismissed.

Legislation:

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

Immigrants and Emigrants Act 1948 (Cth)
1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

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

Applicant: MZZZW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 236 of 2014

Judgment of: Judge Hartnett

Hearing date: 10 February 2015

Delivered at: Melbourne

Delivered on: 27 February 2015

REPRESENTATION

Counsel for the Applicant: Mr Cunliffe

Solicitors for the Applicant: Ian Cunliffe Legal

Counsel for the respondents: Mr Brown

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 236 of 2014

MZZZW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant is an unauthorised maritime arrival who applied for a Protection (Class XA) visa (‘the visa’) on 20 September 2012.

2. A delegate of the First Respondent (‘the delegate’) refused to grant the visa on 14 December 2012, and a first Refugee Review Tribunal affirmed the delegate’s decision on 17 May 2013.

3. The Applicant sought judicial review of the decision of the first Refugee Review Tribunal. This Court ordered by consent on 21 August 2013 that the Refugee Review Tribunal re-determine the application according to law.

4. The second Refugee Review Tribunal (‘the Tribunal’) conducted a hearing on 14 November 2013, when the Applicant was assisted by an interpreter and represented by a migration agent. The Applicant gave evidence and presented arguments.

5. The Tribunal handed down its decision on 31 January 2014.

6. An Application for judicial review of the Tribunal decision was filed by the Applicant on 12 February 2014. The grounds set out therein were a claimed lack of procedural fairness to the Applicant by the Tribunal and application of the wrong legal test by the Tribunal. No particulars were provided. On the hearing of the matter before the Court on 10 February 2015, the Applicant was represented by his solicitor. Leave was sought for the Applicant to amend the grounds stated for application for judicial review. That was not opposed and the Court granted such leave. Further, the Applicant sought to make oral submissions in the absence of written submissions as earlier ordered in Orders made by Registrar Allaway on 7 May 2014. Again, that was not opposed by the First Respondent and the Court indicated a preparedness to proceed in that manner. 

7. The amended grounds of review are as follows:-

   “1. That the decision of the Second Respondent is affected by jurisdictional error in that it applied the wrong legal test in deciding whether the Applicant was a refugee.

   Particulars

   The Tribunal applied the test whether it had been satisfied of certain matters by the Applicant

   Those matters were whether there were “substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there is a real risk he will suffer significant harm.”

   The Tribunal’s Decision Record indicates that it failed to have regard to the potentially profound adverse consequences of exclusion from the protection of the Refugees Convention for a person otherwise entitled to that protection.

   2. That the decision of the Second Respondent is affected by jurisdictional error in that its decision record appears to be biased in breach of the rules of procedural fairness; or in the alternative, the Tribunal committed an error of law amounting to jurisdictional error in that regard.

   Particulars

   The Tribunal did not approach its task by asking itself the correct, neutral question: “Does the Applicant have a well-founded fear of persecution on a relevant ground?” Rather its approach was to look for bases to discredit and/or discount the Applicant’s evidence.

   The Tribunal’s Decision Record indicates that it failed properly to consider and weigh evidence submitted by the Applicant and failed to pay close attention to the probative relevance of the material and to engage in a meticulous investigation of it.

   3. The Tribunal did not afford the Applicant procedural fairness, or in the alternative its decision is affected by errors of law amounting to jurisdictional error, in that it failed properly to consider the LTTE links of the Applicant and the implications of those links for the Applicant if he returns to Sri Lanka.

   Particulars

   The then operative UNHCR (2012) eligibility guidelines “the possible risks facing individuals with the profiles outlined below require particularly careful examination, … (i) persons suspected of certain links with [LTTE]”. (at paragraph 27 of the Decision Record and page 5 of the eligibility guidelines). The eligibility guidelines then elaborate on that category (i) to include “Persons with family links or who are dependents on or otherwise closely related to persons with the above profiles.” (at paragraph 28 of the Decision Record and pages 26-27 of the eligibility guidelines). The “persons with the above profiles” referred to there are in turn categorised above at those referenced pages of the eligibility guidelines. They focus in particular on persons who were LTTE cadres and the like.

   The Tribunal’s Decision Record shows clearly that it accepted that the Applicant’s father was taken to the CID in approximately 2002 “and never seen again.” The Tribunal’s acceptance that the Applicant’s father was taken to the CID in approximately 2002 “and never seen again” must be taken as acceptance also that the Applicant's father was a Tamil who was suspected by Sri Lankan Government authorities.

   Despite these findings by the Tribunal and despite the guidance of the then operative UNHCR (2012) eligibility guidelines that the possible risks facing individuals with the profiles including persons suspected of certain links with LTTE “requiring particularly careful examination”, the Tribunal’s Decision Record is entirely silent as to the implications of this for the (sic).

   It was incumbent on the Tribunal to probe what those matters indicate about the possible risks facing the Applicant, including as a returned, failed asylum seeker. And to give them “particularly careful examination” Rather the Tribunal treated the Applicant as just another Tamil.”

   In addition to the above, in submissions, the Applicant’s solicitor added a fourth ground being that there was a failure on the part of the Tribunal to give any proper consideration to the complementary protection provisions as they are set out in s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).

8. I have the Court Book before me in evidence and Written Submissions of the First Respondent. In the Response filed on 21 February 2014, the First Respondent seeks dismissal of the application and costs. For the reasons which follow, I propose to make orders as sought by the First Respondent.

Background and Claims

1. These are set out accurately in the First Respondent’s submissions and I adopt them here:-

   a)the Applicant is a 19 year old Sri Lankan citizen of Tamil ethnicity, a Hindu whose home village is Udappu in north-western Sri Lanka. He arrived in Australia with his older brother as an unauthorised maritime arrival on 21 May 2012;

   b)the Applicant attended school in Udappu and sat his O-levels before leaving school in 2007 and working in a variety of roles, prawn farming, labouring and gardening;

   c)his father, who was a fisherman, disappeared in 2002 at the height of the fighting between the Sri Lankan authorities and the LTTE, and is presumed dead. The Applicant was only six or seven years old at the time, and did not know what had happened to his father. Although Udappu was not in an LTTE-dominated area, he feared that his father had been killed by the authorities on suspicion of being a Liberation Tigers of Tamil Eelam (‘LTTE’) supporter;

   d)the Applicant stated that his family were subsequently harassed on many occasions by the army and the police Criminal Investigations Department (‘CID’), who came to their home looking for the Applicant and his brother. The family home was damaged.

   e)in his delegate interview the Applicant claimed that a grease devil had come to his home on one occasion, breaking doors and windows while he was inside;

   f)the Applicant feared that should he return to Sri Lanka he would suffer serious harm on account of the army, the CID and the police targeting him because:

   i)they would think that he will inform non-Government agencies about his father’s disappearance;

   ii)his Tamil ethnicity (other Sinhalese people would also persecute him on account of his ethnicity); and

   iii)his being a failed asylum seeker from a Western country.

The Tribunal Hearing

1. The Tribunal accepted that in approximately 2002, the Applicant’s father went missing and was taken by the CID and was never seen again. The Tribunal noted the Applicant’s account accorded with general country information around that period concerning the treatment of Tamils suspected of assisting the LTTE.

2. The Tribunal rejected the Applicant’s account of the army and CID coming to the family home after his father's death, on account of his vague and changing evidence, the implausible nature of his claims given that he and his brother had been seven and nine in 2002, the implausible nature of his claim that his brother tipped him off about the authorities’ visits so that he knew when to leave the house, the fact that nothing ever happened to his mother who was better placed to report her husband’s disappearance to non-Government agencies, and inconsistencies in the accounts that he gave to the different Tribunal hearings.

3. The Tribunal found, with respect to the Applicant’s claims, the following:-

   “37. Whilst the tribunal is prepared to accept that the applicant’s father disappeared as he was suspected of some involvement in the LTTE, this occurred over 11 years ago when the applicant was just seven years of age and his brother nine years of age. The tribunal does not accept that the applicant or his immediate family has been the subject of any adverse interest by the authorities or anyone else since that time.  Based on this, the tribunal finds that he does not face a real chance of persecution on account of his membership of a social group (consisting of his family) or his imputed political opinion as a LTTE supporter now or in the reasonably foreseeable future and any fear of persecution on this basis is not well-founded.  Following the Full Federal Court decision in MIAC v SZQRB [2013] FCAFC 33, in considering s.36(2)(aa) the tribunal notes that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable in the context of assessment of the Refugee Convention definition.  Consequently for the same reasons the tribunal is satisfied that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm on this basis.”

   His claims relating to Grease men/devils

   “38 In in protection visa application the applicant claimed that there was an incident when a grease devil (also known as a grease man) came to his home and broke the doors and windows when he was inside.  According to the delegate’s decision he was vague when asked about this incident.

   39. It was submitted by the applicant’s advisers that it was highly likely that grease devil attacks were being carried out by army or intelligence personnel with the aim of subjugating the Tamil population.

   40. The applicant told the previous tribunal that after his father disappeared there was no other event that took place.  The previous tribunal put to him that this seemed contrary to what he had stated in his interview with the delegate when he had said that a grease devil had come to his house.  He told the previous tribunal it did not happen when he was there.  The previous tribunal put to the applicant country information  that grease devil attacks had stopped since September 2011.

   41. The applicant’s evidence to the tribunal was that his brother had mentioned he had a problem involving a grease devil. The applicant said that he did not know anything about any grease devil incident or problem.

   42. The the (sic) applicant’s statement that he was not there when the grease devil was there and that he did not know anything about any grease devil incident or problem is inconsistent with his protection visa application and his statement at the delegate’s interview that he was in the middle of the house at the time. Due to the change in the applicant’s evidence and his claim to know nothing about a grease devil attack the tribunal does not accept that a grease devil came to the applicant’s home and broke the doors and windows. Based on his past experience and the country information, the tribunal finds that there is no real chance that the applicant would be subjected to an attack by a grease man/devil in the reasonably foreseeable future and any fear of persecution on this basis is not well-founded.  For the same reasons the tribunal is satisfied that there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm on this basis.

   The applicant’s fear of harm on account of his Race and Religion

   43. The applicant claimed he fears harm on account of his ethnicity as a Tamil.

   44. The applicant’s agent referred to country information regarding; the failure to address impunity for past human rights abuses, the restrictions on people suspected of ties with the LTTE, the ill-treatment of human rights defenders, political activists and journalists and the situation for Tamils in the North and East. The adviser referred to the UNHCR’s Eligibility Guidelines 2012 in relation to the risk of harm to persons suspected of having links to the LTTE. It was submitted that those Tamils most likely to come to the adverse attention of the Sri Lanka authorities were young Tamil males originating from the North and East of the country.

   45. In his evidence to the tribunal the applicant confirmed he was from Uddapu and that he had never lived anywhere else in Sri Lanka. He confirmed that Uddapu was in the west of Sri Lanka and not in the north or east of Sri Lanka and had never been under the control of the LTTE. The applicant confirmed that he had never been involved in politics in Sri Lanka and had not worked as a journalist.

   46. In these circumstances that tribunal finds that the applicant does not have a well-founded fear of persecution on account of being a young Tamil male from the North or east of Sri Lanka. Equally there are also no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm when he has never lived in the North or the East, been in involved in politics or worked as a journalist.”

4. The Tribunal considered county information including that submitted by the Applicant and that provided by the United Nations High Commissioner for Refugees (‘UNHCR’) 2012 eligibility guidelines for refugee protection claims by Sri Lankan Tamils, and 31 July 2013 Department of Foreign Affairs and Trade (‘DFAT’) country information about the treatment of Tamils, and rejected the Applicant’s claim to have a well-founded fear of persecution on account of his Tamil ethnicity, on the basis that he did not have a profile that would expose him to persecution.

5. The Tribunal said as to that country information, in part, the following:-

   “54. The country information set out above indicates a generally improved situation for Tamils since the ending of the war with the UNHCR stating that there was no longer a presumption of eligibility for Tamils originating from the north and that originating from an area that was previously controlled by the LTTE does not in itself result in a need for international refugee protection.  DFAT in particular have also recently commented that the security situation in the north and east is greatly improved since the end of the military conflict, although incidents of violence can occur.  They have commented that incidents of abductions have declined and have referred to the release of former LTTE cadres and the recent closure of the remaining IDP camp.  A number of articles are referred to in written submissions and some of the information set out above indicates continuing human rights problems for Tamils in Sri Lanka.  When the previous tribunal put the substance of the above country information to the applicant he said that he would be happy to go back if those that said this would come with them. The tribunal relies on the information from the UNHCR in its Eligibility Guidelines as to the circumstances for Tamils as it presents an authoritative and independent overall analysis of the situation for Tamils and the human rights situation in Sri Lanka.  The tribunal also relies on the information from DFAT because it is recent and they have been specifically charged with the provision of such information to the Australian government.

   53. The tribunal accepts that Tamils are required to have ID cards but this does not amount to either serious harm or significant harm.  The tribunal finds based on the country information and the applicant’s past experiences that the chance or risk that the applicant will be detained for not having one is remote. There was a claim that the army and Sinhalese were acquiring land in Tamil areas but the applicant did not claim that he or his family were personally affected by this. The country information referred to by the applicant’s agent indicted that this was happening in the North and East  The tribunal finds that the chance or risk of this happening to the applicant or his family who live in Udappu to be remote and does not accept that this would amount to serious harm or significant harm in any case. 

   …

   59. In a submission dated 2 May 2013 the applicant’s agent referred to the UK Home Office Border Agency Bulletin on the Treatment of Returnees. Reference was made to a 2010 Tribunal Country Advice, an August 2011 Immigration and Refugee Board of Canada Report and a Report on the Treatment of Failed Asylum Seekers from Tamilnet. It was submitted that the applicant would come to harm immediately on arriving in Sri Lanka. His identity was known to SLA and CID as they have been looking for him. The tribunal has not accepted that the authorities have been looking for him or that he has a profile with the authorities in Sri Lanka. 

   63. The Tribunal considered carefully the material provided by the applicant’s adviser including UK Home Office 2012 Sri Lanka Bulletin: Treatment of Returns, December and the March 2012 article from Tamilnet which relate to the return of persons suspected of supporting the LTTE. The applicant evidence was that he had never been accused of or suspected of supporting the LTTE. He told the tribunal that his relatives have not been accused of helping LTTE members. Although it is possible that his father was accused of supporting the LTTE his father disappeared over 11 years ago when the applicant was aged seven and the family has not been subject to any adverse attention from the Sri Lanka authorities as a result. In these circumstances the tribunal does not accept at the time the applicant returns to Sri Lanka he would have the profile of being a supporter of the LTTE or the family member of a supporter of the LTTE or would be identified as having relatives in the LTTE.”

1. The Tribunal noted the Applicant had left Sri Lanka illegally, and would be charged with an offence under the Immigrants and Emigrants Act 1948 (Cth) upon return, a law of general application, which would be likely to result in the Applicant being detained on remand for a short period. The law would not be applied discriminatorily against the Applicant for a Refugee Convention reason.[1]

   [1] 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees.

2. The penalty most likely to be imposed for leaving Sri Lanka illegally was a fine, and the Applicant had indicated at the Tribunal hearing that he would not have any difficulty in paying a fine. The Tribunal found that the Applicant did not face a real chance of persecution as a member of the particular social groups of failed asylum seekers or persons who left Sri Lanka illegally.[2]

   [2] The Refugee Review Tribunal Decision Record dated 31 January 2014 at [89].

3. Throughout its decision the Tribunal gave consideration to whether the Applicant’s circumstances invoked Australia’s protection obligations under s.36(2)(aa) of the Act, the complementary protection provisions, and decided that they did not.

4. The Tribunal considered the real risk of “significant harm” to the Applicant as detailed and, in particular, from paragraph 79 onwards. The Tribunal said at paragraph 83:-

   “The Tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer discomfort whilst in prison. The applicant will be remanded for a short period of time, between one night to several nights or possibly up to 2 weeks. Even taking into account the fact the applicant is a young man of 18, the Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable.”

5. The Tribunal also found there was not a real risk the Applicant would be arbitrarily killed and the death penalty did not arise on the facts.

6. The Tribunal then considered the Applicant’s claims cumulatively and found (at paragraph 92 of its Decision Record dated 31 January 2014 (‘the Decision Record’)):-

   “…  even when his situation is viewed cumulatively there are no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka there is a real risk that he will suffer significant harm.”

Consideration

1. It is a matter for the Tribunal what country information it obtains and what weight it gives to such information. As was said by the Full Court of the Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs:-

   “The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”

2. The Tribunal applied the correct legal tests to the facts it found on the evidence. Such facts were open for it to find on the evidence. There was no burden of proof imposed upon the Applicant as claimed by his solicitor in submissions. The Tribunal conducted a proper examination of the matters claimed by the Applicant in its extensive reference to country information and puttage of matters to the Applicant in particular where it had issues as to inconsistencies in his evidence or the implausibility of it. Careful consideration was given to his varied claims. A logical and reasonable approach to the matter was exhibited in the Decision Record and the conclusion reached neither irrational nor unreasonable on the evidence. Credibility findings are of course a matter for the Tribunal and not this Court. There is no evidence of bias attending the decision and it is difficult to see how that ground was raised. The suggestion likewise that the Tribunal failed to give any proper consideration of the complementary protection provisions is not founded in fact. A thorough and legally accurate consideration is evident.

3. No jurisdictional error attends this decision and the application shall be dismissed with costs.

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

Associate: 

Date:  27 February 2015

[3] [2004] FCAFC 10 at [11].