MZZZZ v Minister for Immigration - [2014] FCCA 2654

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZZZ v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2654

Catchwords:
MIGRATION – Application for judicial review – whether failure to comply with s.424(A) – whether failure to accord natural justice – whether failure to deal with an integer of the claim – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 91R(1)(b) , 422B

Abebe v Commonwealth (1999) 197 CLR 510
Chen Xin He v the Minister of Immigration and Ethnic Affairs [1995] FCA 1682
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant:

MZZZZ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 264 of 2014

Judgment of:

Judge F. Turner

Hearing date:

20 October 2014

Date of Last Submission:

20 October 2014

Delivered at:

Melbourne

Delivered on:

4 December 2014

REPRESENTATION

The Applicant appeared In Person with the assistance of a Tamil interpreter

Counsel for the First Respondent:

Mr L. Brown

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application for judicial review filed 17 February 2014 and amended application filed 2 October 2014 are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 264 of 2014

MZZZZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 13 January 2014. That decision affirmed the decision of a delegate to the Minister for Immigration & Border Protection not to grant the applicant a Protection Class (XA) visa.
The applicant is a citizen of Sri Lanka, who arrived in Australia by boat on 29 May 2012. The applicant claims that his father and uncle were killed by the Sri Lankan Army (the “SLA”) in December 1990, who were killing every Tamil they found in the applicant’s area. The applicant feared forced recruitment by the Liberation Tigers of Tamil Eelam (the “LTTE”) and left Anamalai that year (1990). While visiting his home on 22 January 2012, some men arrived who “beat, threatened and interrogated him at gunpoint about (a friend named) Dileep or the applicant’s father” (Court Book “CB” p.257 [109]). The applicant believes that he will be targeted by the Sri Lankan authorities if he returns, as he is a Tamil, and because of his particular social group.
The applicant’s grounds for judicial review are set out in his Amended Application filed 2 October 2014 as follows:
(1)That the decision of the second Respondent, the Refugee Tribunal member was affected by legal error.
(2)More details will be provided by the legal representative.
PARTICULARS
(3)The decision of the Refugee Review Tribunal is affected by jurisdictional error.
(a)The tribunal and the court failed to deal with an integer of the claim, as to whether or not there was a well founded fear of persecution based on his membership of an alleged particular social group, namely young Tamil male from the north/east of Sri Lanka. In particular, whilst the tribunal has considered the heightened risk profile arising from being a Tamil from the east, both his age and gender and fact the applicant was a boat person did not receive his consideration in the context of him being a member of a particular social group.
(b)The tribunal has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm.
(4)The decision of the Refugee Review Tribunal is affected by error in that there was a denial of procedural fairness.
PARTICULARS
(a)The tribunal has failed to provide to the applicant for his consideration and comment those aspects of country information which related to pro Government (non state) paramilitary groups. The applicant says he would be at a heightened risk, given he would be a returned asylum seeker and it could be imputed that he was returning with cash.
(b)The tribunal did not put to the applicant for comment all adverse “country information” regarding the situation for failed asylum seeker/returnee Tamils in Sri Lanka, the non requirement that Tamils register in Colombo, that simply being a Tamil from the north or east was no longer enough to put someone at risk & the poor conditions and lack of resources in Sri Lankan prisons. That in fairness to the applicant he should have been provided in written form, so that the applicant and his representative would have had a reasonable period of time to digest such information and then make submissions in response. The applicant’s representative of his own accord addressed the issue of harm based on the applicant’s illegal departure from Sri Lanka, however it should have been initiated by the tribunal, given it was an important aspect of its final decision.
(c)The tribunal did not put to the applicant for comment adverse “country information” regarding the improved situation for Tamils in Sri Lanka.
The applicant represented himself at the hearing before the Court on

20 October 2014; Mr L. Brown of Counsel represented the first respondent.
The Court invited the applicant to make submissions but nothing of substance was put. The applicant sought an adjournment to enable him to get legal advice. The Court refused an adjournment as the applicant had been on notice since the orders of 7 May 2014, that the hearing was listed for 20 October 2014.

The Applicant’s Written Contentions of Fact and Law

The applicant contends that the Tribunal failed to deal with an integer of his claims, being that he had a “well founded fear of persecution based on his membership from an alleged particular social group, namely young Tamil male from the north/east of Sri Lanka” (Ground 3(a)).
The applicant contends that the Tribunal did not consider properly the complementary protection provisions in s.36(2)(aa) of the Migration Act 1958 (the “Act”), and his claim that “as a foreseeable consequence of… being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm” (Ground 3(b)).
The applicant submits that he fears being arbitrarily deprived of his life, being targeted or being subject to cruel, sub-human or degrading treatment or punishment from the SLA, government authorities, or paramilitary pro-government forces. The applicant claims to have these fears because he will be viewed as an LTTE supporter.
The applicant submits also that he was denied procedural fairness. Section 422B(1) of the Act provides that:
(1)“The Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.
The applicant submits that the Tribunal failed to provide, “for his consideration and comment… country information which related to pro Government (non state) paramilitary groups” (Ground 4(a)). The Court finds that such information is subject to the exception in s.424A(3)(a), and was not required to be put to the applicant.
The applicant submits that the Tribunal failed to put to him country information regarding:
·The situation of failed asylum seeker/returned Tamils in Sri Lanka;
·Information that Tamils are not required to register in Colombo;
·That being a Tamil from the North or East would not put him at risk; and
·The poor conditions and lack of resources in Sri Lankan prisons.
Again, the Court finds all that information is subject to the exception in s.424A(3)(a), and was not required to be put to the applicant.
The applicant was invited to attend the hearing before the Tribunal on 20 May 2013, to give evidence and present arguments (Court Book “CB” p.204). The applicant appeared that day with his legal representative (CB p.214).
The applicant has not established a denial of procedural fairness. That ground is dismissed.

Submissions for the First Respondent

Mr Brown referred to the interpretation by Justice North in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 at [30], “that serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty”, unless the deprivation is a result of a law of general application. However, Mr Brown submits that the decision has no effect on the result in this case as s.91R(1)(c) requires that the persecution be discriminatory (and here it is not) (CB p.259), as it results from the application of the Immigrants and Emigrants Act 1945, which is a law of general applicant (D 131, 132, 133).

The First Respondent’s Outline of Submissions

The applicant claims to have a well-founded fear of persecution if returned to Sri Lanka on the basis of his:
·Tamil Ethnicity;
·Membership of a particular social group of young Tamil men from the North or East of Sri Lanka;
·Membership of a particular social group of failed asylum seekers who departed Sri Lanka illegally; and
·Imputed political opinion in support of the LTTE.
The applicant also claims that there were substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia and returned to Sri Lanka, there was a real risk he would be subjected to violence that amounted to significant harm so as to invoke Australia’s obligations under s.36(2)(aa) of the Act (the “complementary protection provisions”).
The first respondent’s submissions refer to where the Tribunal considered the particular social group of Tamils from the North or East of Sri Lanka, and found that as Tamils are no longer required to register in Colombo, the applicant was unlikely to face mistreatment in the future (CB p.254 [96]–[97]). The Tribunal also considered the particular social group of young Tamil males from the North East of Sri Lanka, and found that this did not give rise to a risk of significant harm in Sri Lanka (CB p.257 [113]).
Findings of fact are not amenable to review.
The submissions refer to where the Tribunal considered the particular social group of failed Tamil asylum seekers who had illegally departed Sri Lanka, and found that the applicant would not be “‘singled out’ for special treatment” (CB p.259 [118]–[119]). The Tribunal found that the applicant would not be subjected to any detention or interrogation in Sri Lanka on his return, other than routine questioning and procedures, which would not constitute “serious harm or significant harm” (Ibid [123]). This issue was dealt with in the submissions of the first respondent relating to the impact of the decision in WZAPN (supra).
The submissions refer to where the Tribunal considered the claimed risk from the applicant’s imputed political opinion (CB p.253 [93]), and found that the questioning of the applicant’s mother was routine, and the SLA did not have any specific interest in the applicant’s father (Ibid [94]). The Tribunal found that the applicant’s claims of being questioned about Dileep were implausible (CB p.255 [101]), and set out its reasons (Ibid [101]–[105]).
As stated by the Federal Court of Australia in Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]:
“The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.”
The Tribunal did not accept that the applicant had a friend named Dileep who was forcibly recruited into the Tamil Makkal Viduthalai Pulikal (the “TMVP”), and did not accept that Dileep was killed by the SLA in March 2009. It did not accept that the applicant or his aunt were questioned about Dileep in 2010 or 2011 (CB p.256 [108]). The Tribunal did not accept that seven people came to the applicant’s house on 22 January 2012, and beat and interrogated him at gun point (CB p.257 [109]).
The Tribunal did not accept that “the applicant will face a real chance of serious harm due to his imputed political opinion resulting from his association with a Tamil named Dileep” (CB p.257 [110]).
It can be seen that the above claims by the applicant were considered by the Tribunal and were not accepted. The Tribunal was entitled not to accept or reject the evidence proffered [Lee (supra)]. Those grounds are dismissed.
The first respondent’s submissions refer to the complementary protection claims under s.36(2)(aa) of the Act, which were considered by the Tribunal. The Tribunal concluded that the applicant may face a short period of remand for his illegal departure from Sri Lanka, but that would not amount to significant harm as set out in s.36(2A) of the Act (CB p.262 [136]).
Again, this issue was dealt with by reference to the decision in WZAPN (supra).
The Tribunal did not accept that there is any real risk that the applicant would face a prison sentence as a result of his illegal departure from Sri Lanka (CB p.262 [137]). The Tribunal found that any fine that may be imposed was unlikely to give rise to a real risk of significant harm as the Tribunal was satisfied that the applicant would be able to pay the fine (CB p.262 [138]).
The Court finds that the above findings of fact were open to the Tribunal and are not amenable to review.
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”
As stated in Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347:
“A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.”
The Court refers to the following decisions:
·Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 per McHugh J at [67]:
“If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”
The Tribunal’s conclusion that the applicant was not credible and his claims untrue are findings of fact: see W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 and par excellence Durairajasingham at [67].
·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A at [64]-[69] per Tamberlin and R D Nicholson JJ.
·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.
·Abebe v Commonwealth (1999) 197 CLR 510 at [137]:
“… there is no error of law… in making a wrong finding of fact…”.
In Chen Xin He v the Minister of Immigration and Ethnic Affairs [1995] FCA 1682 RD Nicholson J stated at [24]:
“It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.”
As stated in Tefonu Pty Ltd v Insurance & Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at p.374:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230, 233-234).”
The decision must be “so unreasonable that no reasonable person could have come to it”: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 at p.41.
The Court does not make that finding in this case.
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26]:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”
And at [29]:
“While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that:
· the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, and
· if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510.”
The first respondent dealt with ground 3(a) (being the alleged failure to deal with an integer of the claims), as the Tribunal considered the heightened risk profile arising from the applicant being a Tamil from the East, but the applicant’s age and gender and the fact that he was a boat person did not receive consideration, in the context of the applicant being a member of a particular social group. The first respondent submits that the Tribunal considered and dismissed that claim at CB p.258 [113]).

The applicant’s age and gender were considered at CBp.258 [113].
The Court does not find that the applicant claimed to be a member of a particular social group that included the criterion of being a boat person. However, claiming to be a failed asylum seeker and a person who left Sri Lanka illegally may be taken to include the applicant’s status of being a boat person. The Court agrees; those claims were considered at [118] – [139].
The first respondent dealt with ground 3(b) being the alleged failure to consider the complementary protection obligations. The Court finds that complementary protection was considered at CB p.241 [14], [15] and [136], and the Court refers again to WZAPN (supra), at CB p.262 [137]-[139].
The first respondent dealt with ground 4 (being the alleged denial of procedural fairness to the applicant). The Court accepts the following submissions by the first respondent.
(46)Under this ground the applicant complains that particular country information was not put to him for comment.
(47)Under s 422B of the Act, Division 4, Part 7 of the Act is taken to be “an exhaustive statement of the requirements of natural justice in relation to the matters it deals with”. In other words, any common law obligations of procedural fairness have been supplanted by obligations arising under the Act… [supra].
(48)Sections 425 and 425A of the Act obliged the Tribunal to invite the applicant to appear before the Tribunal to give evidence and present arguments in relation to the issues for consideration. It is clear that the Tribunal complied with this obligation and the applicant accepted the invitation and appeared before the Tribunal. [CB pp.203 and 214].
(49)The effect of ss 424AA and 424A is that the Tribunal must disclose particular information before a hearing or if at the hearing it must describe the nature and effect of the information and adjourn the hearing for an appropriate period of time to allow the applicant the opportunity to consider the material. There is no suggestion in this case that the Tribunal failed to properly disclose information within ss 424AA and 424A. Indeed, in the course of reaching its decision, the Tribunal relied solely on information given by the applicant during the course of his visa application or the Tribunal’s hearings and independent country information not specifically relating to the applicant. Both of these types of information fall within the exceptions specified in s 424A(3) and therefore are not subject to the particular requirements of s 424A(1).
(50)In any event, it is clear from the Tribunal’s reasons that the issues relevant to the determination of the applicant’s claims and material that was adverse to the applicant was raised with the applicant during the Tribunal’s hearing. See, in particular: [75]-[83], [96].
(51)By sub ground a. the applicant seems to complain about a denial of procedural fairness in relation to a claim that he would be at risk of harm from paramilitary groups on his return from Australia because he would be imputed as returning with cash. That claim was not raised in any of the material before the Tribunal and is not referred to in the Tribunal’s reasons.
The Court finds that there was no denial of procedural fairness.

Findings

The Court finds that the Tribunal did not fail to deal with an integer of the applicant’s claims.
The Tribunal dealt with the complementary protections obligations.
The Tribunal dealt with the claim of membership of a particular social group of:
·Tamils from the North and East of Sri Lanka;
·Young Tamil males from the North and East of Sri Lanka; and
·Failed Tamil asylum seekers who had illegally departed Sri Lanka.
The Tribunal dealt with the claim of imputed political opinion.
The Tribunal dealt with the claims based on the applicant’s age and gender and if the claim of being a boat person was raised, it dealt with that in addressing the claims to be a failed asylum seeker who left Sri Lanka illegally.
The Tribunal did not fail to provide to the applicant material that it was required by the Act to provide.
The Tribunal did not fail to accord procedural fairness to the applicant.
The application for judicial review is dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate:

Date: 4 December 2014