SZRUT v MIBP

[2015] FCCA 262

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 262

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – adverse credibility findings against Applicant – no jurisdictional error – application dismissed.

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

Applicant: MZZQY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1333 of 2013

Judgment of: Judge Hartnett

Hearing date: 3 October 2014

Delivered at: Melbourne

Delivered on: 10 February 2015

REPRESENTATION

Counsel for the Applicant: Mr Fairfield

Solicitors for the Applicant: Ambi Associates

Counsel for the respondents: Ms Battem

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 $6,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1333 of 2013

MZZQY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By Amended Application filed 4 September 2014 the Applicant seeks:-

   “1. A declaration that the decision of the Tribunal dated 30 July 2013 is unlawful, void and of no force and effect.

   2. Certiorari quashing or setting aside the decision of the Tribunal.

   3. Prohibition directed to the first Respondent prohibiting him from acting upon or giving effect to or proceeding further upon the decision of the Tribunal.

   4. Mandamus or an injunction compelling the first Respondent to cause the Tribunal to consider and determine according to law the Applicant’s application for a protection visa.

   5. Costs.”

2. The ground of the Application is as follows:-

   “1. The Tribunal’s decision and reasons for decision disclose jurisdictional error because the Tribunal misunderstood, misconstrued and failed to consider a claim, or integer of a claim, made by the applicant.

   Particulars

   (a) The applicant had claimed that he owed 400,000 rupees to politically connected people smugglers and that the ‘agent’ of the people smugglers who demanded the payment had political connections. The applicant feared persecution upon his return to Sri Lanka from the politically connected people smugglers and their politician allies and that the Sri Lankan government would not protect him as a result.

   (b) This claim was first raised by the applicant in his initial interview

   (c) It was repeated in a written submission to the Tribunal

   (d) The Tribunal reasoned:

   "”I reject the applicant's claim that he is at risk of harm from a politician called “Santha” and that this person threatened his family or levied a threat against the applicant accompanied with a demand for money owed for the applicant's passage to Australia. Whilst he has consistently claimed that there is an amount of about 4 lakh rupees owing for his trip, and I have no reasons not to accept this to be the case, I am of the view, given my concern as to his credibility, that this late claim is opportunistically made and is fabricated.”

   (e) The Tribunal erred because:

   (i) it did not consider the claim which the applicant made;

   (ii) the Tribunal’s finding that the applicant was not at risk of harm from, or at the direction of, a politician called “Santha” was not dispositive of the claim which the applicant had made;

   (iii) the event alleged in respect of “Santha” happened on 24 June 2013;

   (iv) the claim which the applicant made was first made on or about 27 July 2012.”

3. The First Respondent denies that the Refugee Review Tribunal (‘the Tribunal’) fell into any jurisdictional error and seeks dismissal of the application and costs.

4. I have before me as evidence the Court Book filed on 14 November 2013. Both parties made written and oral submissions.

5. The Applicant’s Application for judicial review is of a decision of the Tribunal made on 30 July 2013. The Tribunal affirmed the decision of the delegate of the First Respondent (‘the delegate’) made on 22 February 2013 not to grant the Applicant a Protection (Class XA) visa (‘the protection visa’).

History

1. The Applicant is a citizen of Sri Lanka who arrived illegally in Australia by boat on 10 June 2012. He is of Tamil ethnicity.

2. In his Irregular Maritime Arrival Entry Interview, the Applicant, in Part C thereof, set out the reasons for his departure from Sri Lanka. Those reasons, as a matter of fact, I find did not include a claim of fear of harm to the Applicant from politically connected people smugglers and their politician allies. In the subsection (within Part C) headed “Arrangements for Travel to Australia” the Applicant claimed his father paid in cash for his travel to Australia by boat. His father paid some part of the money owing to a friend “Vasanathan”. That person then gave the money to an agent by the name of “Sinnathamby”, who was also known as “Pachcha Kanjan”. The Applicant never spoke to the agent. The remaining monies owing, 400,000 rupees, his father said he would see to the payment of, later. The agent, the Applicant claimed, was insisting on early payment of the balance. If the monies were not forthcoming, the Applicant said he would not suffer, but his father would. The Applicant then claimed that the agent had political connections and was warning his father to make payment quickly.

3. On 12 September 2012, the Applicant applied for a protection visa. The Applicant made a Declaration dated 12 September 2012 in support of his application.

4. In his Declaration, the Applicant claimed he feared harm from an unknown group of political opponents of his uncle, and the authorities of Sri Lanka, through the Criminal Investigation Department (‘CID’) or the Army, because in October 2008, he witnessed his uncle being kidnapped and reported this to the police. His uncle, he claimed, was a member (at the tribunal hearing, a former member) of the United National Party (‘UNP’). The Applicant feared the authorities at the airport would arrest, detain and interrogate him if he was returned to Sri Lanka as a failed asylum seeker.

5. On 28 September 2012, the Applicant’s migration agent filed written submissions on behalf of the Applicant. The Applicant’s migration agent submitted the Applicant feared persecution due to his Tamil race; his membership of particular social groups comprising Sri Lankan Tamils and Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia; and his real and imputed political opinion arising from his race and his former residence in a predominantly Tamil region. In summary, it was said the Applicant feared persecution because Sri Lanka Government security agencies and affiliated paramilitary organisations suspect that he is linked with the LTTE.

6. On 14 June 2013, a hearing took place before the Tribunal, at which the Applicant was represented by his migration agent.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The Applicant gave evidence and oral submissions were made on his behalf by his migration agent.

7. Following the hearing, on 28 June 2013, the Applicant’s migration agent filed further written submissions. The further written submissions relevantly stated, in part, that:-

   “I have obtained further instruction from my client and he has asked me to present additional information to the Tribunal. I have informed him that it may become necessary for the Tribunal to interview him again. My client has informed me that on 24 June 2013 a politician by the name of “Santha” came to his family’s home and has been threatening them to pay a further four lac which is money that is owed for his journey to Australia. The politician told his family that (in reference to the client), “He will come back and I will take care of him.” My client had never met the politician before but is aware that politicians are often involved in people smuggling.

   I ask that you take this issue in to (sic) account as an additional claim under Complementary Protection. My client fears that he will be killed by smugglers/ politicians who support them if he is returned to Sri Lanka. He fears that the government of Sri Lanka will not protect him because the people who threaten him are connected to the government.”

   I find this was the first time the Applicant had made this specific claim. As stated by the migration agent, this is additional information and a claim additional to those already placed before the Tribunal. Did the Tribunal deal with this claim? I find, for the reasons set out herein, it did do so.

8. On 2 July 2013, the Applicant's migration agent forwarded a letter from Kathirkamappilai Magalingam dated 28 June 2013 in which the writer claimed the kidnappers came to his home to kidnap him and the Applicant. I note the Tribunal found that this claim was not one made by the Applicant himself, and was not true. The letter also claimed the Applicant faced a “lot of difficulties by Sri Lankan Army”, a claim the Applicant also made during the Tribunal hearing. During the hearing, the Applicant claimed that around 10 April 2012 an Army person came to the camp where his family was living, and asked for the Applicant to report to the Army camp.

Tribunal Hearing

1. The Tribunal did not regard the Applicant “to be a generally credible witness”. The Tribunal said:-

   “He has made additional late claims that I find are not true.”[1]

   [1] Refugee Review Tribunal Decision Record dated 30 July 2013 at [20].

2. The Tribunal was prepared to accept that in 2008 the Applicant's uncle was taken at gunpoint, and that the Applicant witnessed this and reported the abduction to the police. The Tribunal considered the abduction was ‘more likely to have been criminal activity’ than there being a genuine political connection or motivation for what happened. The Tribunal did not accept there was any ongoing risk to the Applicant as a consequence of what happened to his uncle in October 2008. Nor did the Tribunal accept the Applicant is at risk of harm from the Sri Lankan CID or other authorities of the government of Sri Lanka, because of the incident involving his uncle in October 2008 or otherwise. The Tribunal rejected the Applicant's claim that he was at risk of harm from unknown people whom he witnessed kidnapping his uncle. The Tribunal noted, and put to the Applicant, that he had been at liberty to leave and re-enter Sri Lanka several times in a regular manner since 2008, and that he had never come to the attention of the Sri Lankan authorities.

3. The Tribunal found the Applicant’s claim that there was a further kidnapping attempt made against the Applicant and his uncle was not true. The Tribunal did not accept someone from the Sri Lankan Army visited the Applicant's mother and said the Applicant had to report to the army camp, or that the Applicant had faced difficulties from the Sri Lankan Army.

4. The Tribunal found the Applicant does not face a real chance of serious harm in Sri Lanka as a consequence of being a failed asylum seeker, a returnee, a person who has left Sri Lanka illegally, or a returnee who may be charged with improperly departing Sri Lanka.

5. The Tribunal rejected the Applicant's claims that he was at risk of harm from a politician called “Santha”. The Tribunal considered this “late claim” was opportunistically made and was fabricated. The Tribunal also rejected the Applicant’s claim that a politician called “Santha” threatened his family or levied a threat against the Applicant accompanied with a demand for money owed for the Applicant’s passage to Australia.

6. At paragraph 46 of the Tribunal’s decision made on 30 July 2013 (‘the Decision Record’) the Tribunal found:-

   “I find it far-fetched and not a real chance that the applicant will face serious harm from or caused at the direction of a politician called “Santha” now or in the reasonably foreseeable future.”

7. At paragraph 47 of the Decision Record the Tribunal continued:-

   “Based on the same reasoning, I find further that there are not substantial grounds for believing that there is a real risk that he [the Applicant] will experience significant harm from or caused at the direction of a politician called “Santha” as necessary and foreseeable  consequence of his removal to Sri Lanka.”

Consideration

1. The Applicant’s complaint that the Tribunal misunderstood, misconstrued and failed to consider a claim, or integer of a claim, made by the Applicant, is not accepted.

2. Contrary to the Applicant’s assertion, the claim of a fear of harm from people smugglers and their political allies was not made during the Entry Interview.  The Applicant specifically stated that he would not suffer as a result of the amount owed to the agent. The relevant part of the Interview is as follows:-

   “12. (k) Amount Outstanding

   We owe him some money - but we said we didn't have it - 400,000 Rupees outstanding.

   12. (l) Additional Information

   Q. How has the stingey man responded to the fact that you haven’t paid the money?

   He has been told the money is not available for the time being and my father said he will see to that later.

   Q. What was his reaction to that?

   He is insisting on early payment, he is coming and asking my home people.

   Q. What will happen if they don’t make the payment?

   I will not suffering, but my home people will get suffering.

   Q. Has he said this to your family?

   Yes, ha (sic) has warned my family and then has gone - he told them to make the payment quickly.

   Q. When you say warned, does that mean threatening to your family?

   He has political connections, so it was a warning yet.”

3. I accept Counsel for the First Respondent’s submissions that the above exchange is not sufficient for the claim to “clearly arise” from the material before the Tribunal. To hold otherwise would require the Tribunal to engage in an independent analytical exercise of the material to construct or create potential claims where it has no such obligation.[2]

   [2] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695.

4. A fear of harm from politically connected people smugglers or their politician allies was not raised in any of the written material filed on behalf of the Applicant prior to 28 June 2013. It was not contained in:-

   a)the Applicant’s Declaration; or

   b)the Applicant’s migration agent’s Submissions to the delegate dated 28 September 2012.

   It was not raised before the delegate, nor during the tribunal hearing. It was made following the tribunal hearing.

   The Tribunal records at paragraph 16 of the Decision Record, “[i]n post­ hearing submissions, further claims were made”. The first of these was that a politician threatened the Applicant in relation to money owed for the Applicant’s journey to Australia. The 28 June 2013 Submissions were the first time the Applicant claimed to fear harm as a consequence of the debt. The Tribunal then went on to consider that claim.

5. The Tribunal found the additional late claim was not true. The Tribunal noted the Applicant consistently claimed that there was an amount of about 4 lakh rupees owing for his trip to Australia, but no prior claim had been made that the Applicant feared harm as a consequence of this debt. The Tribunal’s rejection of the Applicant’s claimed fear of harm from “Santha” resulted in an absence of established facts to support the contention, that the Applicant feared harm by reason of politically connected people smugglers/ politicians.

6. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs,[3] the Full Court of the Federal Court (Black CJ, French and Selway JJ) held at paragraph 55 that:-

   “Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.”'[4]

   In this case there were no established facts. But there was a late, articulated claim, dealt with in the Decision Record of the Tribunal.

   [3] (2004) 144 FCR 1.

   [4]NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1, 55.

7. Finally, for completeness sake, I refer to the decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs,[5] wherein the Full Court observed at paragraph 63:-

   “It is plain enough, in the light of Dranichniko [v Minister for Immigration and Multicultural Affairs [2000] FCA 1801, 49], that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be “subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected”: Applicant WAEE at [47]…”

   [5] (2004) 144 FCR 1.

8. A conclusion that the Tribunal has failed to consider a claim not expressly advanced is not to be made lightly.  As Gleeson CJ warned·in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[6] on judicial review, a decision of the Tribunal “must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process”.

   [6] (2003) 216 CLR 473

9. Nevertheless, in oral submissions before me, Counsel for the Applicant also argued that the claim clearly arose on the material before the Tribunal, and from the time of the Applicant’s arrival interview, even if the claim was not expressly advanced. It should have, it was argued, been considered by the Tribunal. Further, such early assertion went to the claim being supported by establishing facts or probative material. But the claim did not arise on the material. Nowhere, prior to the 28 June 2013 submissions of the Applicant, did the Applicant articulate a fear of harm from politically connected people smugglers and their political supports, nor did it appear as a claim to be considered by the Tribunal on the material.

10. On a fair reading of the whole of the Decision Record, the Tribunal dealt with the claim made by the Applicant. Accordingly, the application is dismissed and costs shall follow the event.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  10 February 2015