MZAEJ v Minister for Immigration and Border Protection

Federal Court of Australia|2015-05-27|Before: Barker J

REASONS FOR JUDGMENT 1 On 21 May 2012, the appellant, a male citizen of Sri Lanka, when travelling to Australia by boat was intercepted by Australian authorities and taken to Christmas Island. 2 He then made an application for a protection (class XA) visa, pursuant to the Migration Act 1958 (Cth), on 21 September 2012. In his application he claimed to fear serious harm, as a person of Tamil ethnicity, from Sri Lankan authorities. 3 The delegate of the Minister refused the application on 13 November 2012. The delegate conducted an interview and doubted the credibility of the appellant in a number of respects. 4 The appellant then sought review of the delegate's decision in the Refugee Review Tribunal. This involved two hearings. The first hearing, listed for 14 February 2013, had to be rescheduled after the appellant was told the incorrect hearing time by his migration agent and arrived more than an hour late for the hearing. The second hearing was on 20 February 2013. 5 Some evidence was taken at the first hearing but the hearing of the Tribunal was substantively conducted at the second hearing. The appellant was assisted by an interpreter at both hearings. 6 On 29 April 2014, the Tribunal dismissed the review application, like the delegate, doubting the credibility of a number of the claims made by the appellant, amongst other issues. 7 The appellant then sought judicial review of the Tribunal's decision in the Federal Circuit Court, but was unsuccessful. See MZAEJ v Minister for Immigration & Anor [2015] FCCA 567. 8 The appellant now seeks to appeal from the judgment of the Federal Circuit Court, essentially on two grounds: (1) that at the time of the hearing he was not mentally and physically fit; and (2) that he was not given time to make a proper oral argument. 9 The appellant says he needs a protection visa and seeks an order that his case be looked at again.

The Delegate's decision 21 On 13 November 2012, a delegate of the Minister for Immigration and Citizenship, as the department was named at the time, refused to grant the appellant a protection visa. 22 The delegate made a number of findings of fact which concerned the appellant's credibility. The delegate dealt with topics concerning the appellant's brother, work, detention and harassment by the government, the white van incident, and threats from plain clothed officers. 23 The delegate found a number of inconsistencies. In light of these inconsistencies and amendments the appellant made to his claim, the delegate did not accept that the appellant was generally a credible and truthful witness and found the appellant was at times evasive. 24 The delegate, while finding the harm feared was serious harm and systematic and discriminatory conduct, was not satisfied that the fear was well-founded. The delegate considered country information, the appellant's entry interview, his visa application, his testimony at the protection interview, and his migration agent's submissions at the protection visa interview. 25 In the result, the delegate considered the appellant's fear of persecution on the basis of his Tamil ethnicity or his imputed pro-LTTE political opinion were not well-founded. 26 The delegate also found that he was not satisfied that the complementary protection provisions of the Act applied to the appellant.

THE TRIBUNAL'S DECISION 27 The Tribunal, as noted above, received further information from the appellant when his review application was conducted over two hearing. The Tribunal summarised the appellant's claims, noting that he said he would be persecuted on the basis of: (1) his race - Tamil; (2) his political opinion - implied to be pro-LTTE/anti-government because he is Tamil, he spent time living in Northern Province and because he applied for asylum in Australia; (3) his membership of particular social groups - (a) young, single Tamil males; (b) internally displaced persons/persons from Northern Province; (c) failed asylum seekers; and (d) persons who illegally departed Sri Lanka. 28 First, the Tribunal considered the delegate's finding that the appellant did not give credible evidence. The Tribunal accepted that applicants for refugee status face particular problems of proof, and that if the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt. However, it also noted that the available evidence should be checked, that the applicant's statements must be coherent and plausible, and must not run counter to generally known facts. Further, the Tribunal said it is not required to accept uncritically any or all of the allegations made by an applicant. 29 The Tribunal found the appellant exaggerated key parts to his claims and fabricated claims of past harm. In particular, the Tribunal noted that when questioned as to his detainment by police in 2007, and what he meant when he said he was beaten on multiple occasions, the appellant eventually stated he was hit for 15 minutes. Further, the Tribunal noted the appellant did not provide full details of his claims as set out in his written submissions when asked, and had to confer with his representative, therefore found that his evidence regarding his prior claims for protection was not spontaneous. 30 During the hearing, the Tribunal put to the appellant inconsistencies in his evidence. 31 For example, the Tribunal noted that while in his written statement and interview with the delegate, he referred to Singhalese men coming to his family home on one occasion only, at the hearing he said the men came on two occasions in March 2012. The Tribunal also noted his evidence was inconsistent because it found that he said in his written statement and interview the men were looking for his brother because he did not attend a protest, but said at the hearing that on a separate occasion the men were looking for him. Further, the Tribunal found the appellant did not mention any event in Geneva his brother did not attend until the first hearing before the Tribunal on 14 February 2015. In response, the appellant said he was asked only about what happened to him in the interview, not his family, and was not asked how many times the men came to his family's house. 32 Further, the Tribunal said the appellant gave inconsistent evidence regarding his neighbour being taken by a white van. While at his interview with the delegate he said he knew of a neighbour being taken in a white van, he did not say the neighbour was shot until the hearing before the Tribunal. The Tribunal did not accept the appellant's explanation that in Tamil, to be kidnapped means not to be alive, and that he was not asked about the general situation in his earlier evidence. 33 In light of these credibility findings, the Tribunal rejected the appellant's evidence of men coming to his family's home in March 2012 or January 2013, and similarly rejected his evidence that in 2012 or 2013 the appellant or his brother were under suspicion from the authorities because his brother did not attend a protest or for any other reason. The Tribunal found the appellant fabricated the claims. The Tribunal therefore rejected a connection between the appellant being "followed" by a white van in 2011 and being targeted by the authorities or anyone else, and said there was no objective basis for the appellant's fear arising from the incident/s. 34 In consideration of country information, the Tribunal accepted as plausible the appellant's evidence that he and his brother were discriminated against and targeted for interrogation during the civil war. However, the Tribunal considered the appellant had exaggerated the frequency and seriousness of the interrogations, detentions and beatings, and rejected evidence that these occurred after the civil war ended. As such, the Tribunal found any harm caused to the appellant by such treatment in the past was not so serious as to amount to serious harm. 35 The Tribunal also viewed as exaggerated the appellant's claim he was targeted for the reason he was from Northern Province in Sri Lanka, impliedly because that was an LTTE controlled area during the civil war. The Tribunal did not accept that the appellant's status as a Tamil, internally displaced person from Northern Province would cause him to be imputed with any anti-government or pro-LTTE opinion. Further, the Tribunal did not consider there to be a real chance he would suffer serious harm if he returned to Sri Lanka because of his race, age, gender, having spent part of his life in Northern Province or being an internally displaced person in North Western Province, now or in the reasonably foreseeable future. 36 In making this conclusion, the Tribunal relied on its finding that the appellant's claimed past harm from the authorities, and claims as to other people in his home village having been kidnapped, abducted in white vans, or shot, were not credible. It also referred to country information and the Office of the United Nations High Commissioner for Refugees 2012 eligibility guidelines, which suggested that Tamils do not face a real chance of suffering serious harm solely on account of their ethnicity, and that the situation for Tamils has changed considerably since the end of the civil war in Sri Lanka. 37 The Tribunal considered there to be only a remote chance the appellant would be harmed in a "greaseman" attack. 38 With regard to the appellant's claim to fear harm on return to Sri Lanka because he had applied for asylum in Australia, the Tribunal considered that a Tamil person would not be imputed to be a supporter or to be involved with the LTTE, or to be opposed to the current Sri Lankan government, solely on account of their ethnicity as a Tamil. Further, the Tribunal found there was no real chance the appellant would be imputed with this political opinion because he would return to Sri Lanka as a person who had applied for asylum overseas. The Tribunal was satisfied that the appellant did not face a real chance of serious harm due to these facts. 39 Regarding the appellant's submissions that he feared serious harm due to the consequences of his illegal departure from Sri Lanka under Sri Lankan migration law, the Tribunal accepted that on return to Sri Lanka, the appellant would be detained for questioning, security and character checks would be undertaken, and that he would be arrested, charged, held on remand then bailed on relevant offences. However, it found that the relevant offences for illegal departure were laws of general application, and not discriminatory in their terms or enforced in a discriminatory way. The Tribunal did not accept that prosecution for breach of Sri Lankan migration law would amount to persecution. 40 Further, while the Tribunal accepted it was likely the appellant would remain for some days in prison on his return, and conditions in Sri Lanka's prisons are generally poor, it found there were no reports that returnees not considered to be anti-government, or LTTE-affiliated, would be targeted and suffer torture and assault. The Tribunal found the appellant would not face a real chance of serious harm if held on remand for a short time. The Tribunal considered there to be only a remote chance the applicant would be sentenced to a term of imprisonment for offences under Sri Lankan migration law. Rather, it found he was likely to be fined around AUD850. The Tribunal noted it was not suggested such a fine would cause the appellant hardship or he would not be able to pay the fine, nor that he was without a relative to provide surety. The Tribunal therefore found the appellant did not face a well-founded fear of persecution due to his illegal departure from Sri Lanka, because there was a lack of discriminatory intent or application in the application of the relevant laws, being held in detention on remand would not amount to serious harm, and there was no real chance he would face a term of imprisonment for the offences. 41 The Tribunal, like the delegate, was ultimately not satisfied the appellant had a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returned to Sri Lanka, therefore did not satisfy the requirements of s 36(2)(a) of the Act. 42 With regard to the complementary protection obligations under s 36(2)(aa) of the Act, the Tribunal noted its findings as to credibility and that the appellant did not suffer harm in the past at the severity and frequency he claimed. The Tribunal did not accept that the appellant suffered harm in the past which amounted to significant harm. Similarly, the Tribunal was not satisfied the harassment of or discrimination towards Tamils that the appellant would face on return to Sri Lanka, or the potential consequences arising from committing an offence under Sri Lankan migration law, amounted to significant harm. As such, the Tribunal was not satisfied there were substantial grounds for believing he faced a real risk of significant harm to satisfy the complementary protection criterion under s 36(2)(aa) of the Act.

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT 43 The appellant brought an application for judicial review in the Federal Circuit Court on 26 February 2015. His application asserted two grounds of review, (1) that the Tribunal did not afford him procedural fairness, and (2) that the Tribunal applied the wrong legal test. The appellant did not file written submissions in the Federal Circuit Court proceeding. 44 At the hearing in the Court below, the appellant applied for an adjournment on the basis that he was able to get legal assistance through the Asylum Seeker Resource Centre. The appellant said that the Centre was assessing whether it would be able to act for him, and that he had first approached the Centre in January 2015. The primary judge found that, in the absence of any written communication to the first respondent and the Court seeking an adjournment, the Centre had not given any indication it would definitely represent the appellant in the Federal Circuit Court, and at best, the application for representation was at a preliminary stage of assessment. The primary judge held there was little realistic prospect of the appellant being represented by the Centre in the foreseeable future and the appellant had had ample time since filing his application to seek assistance. In those circumstances, the primary judge did not grant an adjournment. 45 As to the substantive application to review the decision of the Tribunal, with regard to the first ground of appeal, her Honour noted that in oral submissions the appellant said he had difficulties with the interpreter at the Tribunal hearing. He said that the interpreter was an Indian Tamil and not a Sri Lankan Tamil and did not know the Sri Lankan dialect. Her Honour noted the appellant did not provide any transcript or expert evidence. He gave an example that he had told the interpreter he was arrested and beaten, and the interpreter communicated very little, but could not provide other examples. 46 Her Honour found that the Tribunal clarified this evidence with the appellant during the hearing and any interpretive error did not result in the appellant's claims not being adequately conveyed to the Tribunal. The Tribunal noted in its reasons that the interpreters had difficulty on some occasions understanding the appellant and on other occasions, the appellant did not clearly hear the interpreter, however it said it had clarified the appellant's evidence and was satisfied the standard of interpreting at the hearings was reasonable and the appellant was able to participate in a meaningful way. Her Honour further noted the appellant's representative before the Tribunal, a migration agent, did not mention any errors of interpretation in written submissions filed after the second hearing. In the absence of concrete evidence in the nature of expert evidence of errors in interpretation, her Honour was not persuaded there was any significant difficulty with the standard of interpretation. In the circumstances, her Honour was not of the view that it would be appropriate to require the Minister to fund the necessary expert to listen to the recording of the Tribunal hearings. 47 The appellant made several submissions in relation to the nature of the hearings before the Tribunal. The appellant said that, when the second hearing before the Tribunal occurred, he was half an hour late as he was on Brisbane time and the hearing was in Sydney. He said the Tribunal seemed annoyed and he was put under pressure. With regard to this claim, her Honour found there was nothing before the court to indicate the Tribunal was annoyed to such an extent that it detracted from the fairness of the hearing. 48 The appellant also said that while he was well prepared for the first hearing before the Tribunal, he was not well prepared for the second hearing and this went against him. The primary judge said the appellant seemed to suggest that there was some jurisdictional error in the Tribunal adjourning the matter to the second hearing, yet in her Honour's view it seemed to have been entirely proper to adjourn the first hearing in circumstances where the hearing room became unavailable because of the late start and prior booking. 49 Further, the appellant noted he had given the Tribunal some documents in Tamil and the Tribunal told him that it could not look at them. He said this was unfair. The appellant pointed to the document in the court book that was a benefit coupon, or food stamps. Her Honour found the Tribunal addressed this document in its reasons and made it clear it would have accepted the document without translation, yet the Tribunal seemed to have expected the migration agent representing the appellant to clarify the claim in relation to the documents and the agent did not do so. In those circumstances, her Honour found there was no jurisdictional error made by the Tribunal. 50 The appellant made further claims before the Court below that he had a well-founded fear of persecution. He said the Tribunal found it was now safe in Sri Lanka but that was not true. The primary judge held that in raising those issues, the appellant appeared to be seeking merits review, and the Court below was not able to reassess the facts of the case. Additionally, the appellant told the Court below he had mentioned to the Tribunal an incident involving a suspicious vehicle, which the Tribunal did not accept, but which truly happened. Her Honour found again that the appellant was seeking impermissible merits review. 51 With regard to the second ground of appeal, the primary judge noted the appellant did not provide particulars and was unable to find anything in the Tribunal's reasons which substantiated the claim. However, her Honour did note that the Tribunal had possibly committed the error identified in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (in applying the wrong test as to when a threat to a person's life or liberty amounts to serious harm). Her Honour noted that decision was binding on the Court below, although special leave to appeal to the High Court was granted on 13 February 2015. However, her Honour found that the Tribunal decision in relation to any detention the appellant might experience on return to Sri Lanka was sustained on the separate and independent ground that the relevant Sri Lankan migration law was of general application and not applied in a discriminatory manner. Therefore, the primary judge did not find jurisdictional error in the Tribunal's handling of the issue. 52 Her Honour dismissed the application for judicial review.

APPEAL TO THIS COURT 53 The appellant filed a notice of appeal in this Court on 4 March 2015. The appellant raises several grounds of appeal. The grounds are handwritten in halting English but appear to state as follows: (1) Hearing time mentally and physically not fit. (2) I did not get time to make good oral argument. 54 The notice of appeal states the orders sought, again in handwritten and halting English as follows: (1) I need protection visa and good judgment. (2) Relook my case again. 55 The Minister submits that the grounds relied on by the appellant are unclear, but seem to suggest that the appellant was not mentally and physically fit to participate in the hearing (either before the Tribunal or the Court below) and that he did not have time to make oral argument. I consider this is a correct assessment of the grounds of appeal. It is not clear if the appellant is intending in ground 1 or ground 2 to refer to the hearing in the Court below or the Tribunal. 56 The appellant has not filed written submissions. 57 At the hearing the appellant made oral submissions. 58 He said that in the Court below he was not represented by a lawyer and because he was not working and had no government benefits was not able to afford one. The Court understood the appellant to be thereby indicating that he did not have the opportunity to present his case properly in the Court below. 59 He further submitted that he did not consider that he had the proper opportunity to make submissions in the Tribunal. 60 Additionally, he considered that the Tribunal did not fully discuss with him the country information upon which it relied in making its decision. 61 Further, he considered that the Tribunal was wrong to consider that there would be no problems for him in returning to Sri Lanka, he being a Tamil from the north of Sri Lanka. 62 Finally, he said that he would not be able to afford to pay any "bond" that is a fine, if he were arrested and prosecuted on return to Sri Lanka, and may face long term detention. 63 In the Minister's submission, the appeal must be dismissed. It says the grounds relied on by the appellant are unparticularised, and, in any event, there is no evidence to suggest that the appellant was not afforded every opportunity to participate meaningfully and make oral arguments in hearings before both the Tribunal and the Court below. 64 The Minister submits that, even if these grounds were capable of forming proper bases of judicial review, they were not directly raised in the Court below. It says leave to argue a ground of appeal not raised before the primary judge should only be granted if it is in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]; MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [61]. 65 With regard to the first ground of appeal, as identified by the Minister, the Minister says there is no evidence that the appellant suffered some form of incapacity during the hearings. The Minister notes the Tribunal mentioned in its reasons that at some points there were communication issues, however the Tribunal clarified these issues with the appellant and was satisfied he was able to communicate effectively, understood the proceedings and participated in a meaningful way. Further, the Minister notes the appellant was represented by a migration agent during both Tribunal hearings and was provided with an opportunity to explain the inconsistencies in his evidence. 66 With regard to the second ground identified, the Minister submits there is no evidence that the appellant was not provided with every opportunity to present oral arguments, or was not afforded a hearing as required by s 425 of the Act. The Minister again notes the appellant was represented by a migration agent, and says further the agent filed both pre and post-hearing written submissions. It also notes the Tribunal clarified a number of issues with the appellant. The Minister submits there is nothing to suggest the same opportunity was not afforded in the Federal Circuit Court. 67 Generally, the Minister submits no jurisdictional error may be identified in the Tribunal's decision. It says the Tribunal appropriately considered the claims of the appellant and rejected them for reasons including important adverse credibility findings. It says it is clear from the Tribunal's reasons that there were a number of inconsistencies in the appellant's evidence, and the credibility findings made by the Tribunal were not unreasonable, illogical or irrational, rather, rationally made and based upon facts that have logical and probative weight: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. 68 Finally, the Minister submits there was no error of the kind identified in WZAPN. It says in that matter, North J found that any deprivation of liberty constitutes "serious harm" for the purposes of s 91R(1)(b) of the Act. However, it says this matter is distinguishable from WZAPN on the basis that the Tribunal in the present matter found that any detention would be pursuant to a law of general application applied in a non-discriminatory matter, and is therefore excluded from the definition of serious harm by s 91R(1)(c). The Minister submits WZAPN has been distinguished on this basis in a number of decisions: see SZSXY v Minister for Immigration and Border Protection [2014] FCA 1183; SZTBE v Minister for Immigration and Border Protection [2014] FCA 1230; SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245; SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252; MZZUO v Minister for Immigration and Border Protection [2014] FCA 1267. In any event, the Minister notes WZAPN was effectively overturned by the Full Court of this Court in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, and that the High Court is reserved in an appeal of the decision. 69 Generally, I accept the submissions of the Minister. 70 As noted above it is not clear whether the appellant by ground 1 intends to complain that he was not mentally or physically fit at the time of the hearing in the Court below or in the Tribunal. 71 If the ground is intended to relate to the hearing conducted in the Tribunal, this was not a ground raised in the Court below. 72 What was raised in the Court below was whether the Tribunal afforded procedural fairness to the appellant. 73 For the reasons given by her Honour in the Court below, there is no substance to that ground. 74 To the extent that ground 1 of the current appeal is intended to reflect that same ground it is not made out. 75 Ground 2, as noted, appears to complain that the appellant was not provided with appropriate time to make "good oral argument". To the extent that that ground relates to the conduct of the proceeding in the Tribunal, again, for the reasons given by her Honour in the Court below, a complaint that the appellant was not afforded procedural fairness in the Tribunal should be dismissed. 76 The appellant was represented by a migration agent in that proceeding and there was also an interpreter present. 77 Complaints about the adequacy of the interpreter have been dealt with appropriately by her Honour in her judgment in the Court below. 78 There is no basis for a complaint that the hearing in the Tribunal denied the appellant the opportunity to make "good oral argument". 79 It may be noted that her Honour also dealt with an issue raised by the appellant that he considered the Tribunal "seemed annoyed" at the second hearing. As her Honour indicated there was nothing to indicate that, if this were the case, it detracted from the provision of a fair hearing. Her Honour's analysis should be accepted. 80 If the appellant's grounds are intended to refer to the conduct of the hearing in the Court below, there is no evidence before the Court to suggest that the appellant was not mentally and physically fit at the time of that hearing. As noted, at the commencement of the hearing, the appellant sought to adjourn the proceeding on the basis that he was hoping to get legal assistance through the Centre. The adjournment was not sought on the basis of the appellant's mental or physical capacity. 81 There is no proper basis to the first ground of appeal. 82 It is also apparent from the reasons given by her Honour, in the Court below, that the appellant had every opportunity to address the Court about matters raised on the appeal and that her Honour canvassed all possible issues, including that the Tribunal had "possibly" committed the error identify in WZAPN. 83 There is no basis presented to support ground 2 of this appeal. 84 As to the possible error identified in WZAPN, the Minister's submissions are accepted that this matter is distinguishable from WZAPN on the basis that the Tribunal here found that any detention would be pursuant to a law of general application applied in a non-discriminatory matter in Sri Lanka and therefore excluded from the definition of serious harm by s 91R(1)(c) of the Act. The Court notes the authorities which similarly distinguish WZAPN and are set out above. 85 As to the appellant's oral submission that the Tribunal did not fully discuss with him at the hearing in the Tribunal country information about Sri Lanka, that has not been an express ground of appeal either in this Court or in the Court below. In any event, as the Minister submitted there is no evidence of any jurisdictional error on that account. The migration agent for the appellant presented such information in the Tribunal. Ordinarily the Tribunal is able to have regard to country information obtained by it. 86 As to the appellant's complaint that he would face the prospect of serious harm if he returned to Sri Lanka, that is a submission that seeks to contest the factual findings initially made by the Tribunal. No jurisdictional error in the Tribunal's decision-making has been revealed. No particular ground relating to that fact finding is currently a ground of appeal before this Court. 87 In these circumstances, no jurisdictional error either in the decision-making of the Tribunal or in the Court below is revealed.

CONCLUSION AND ORDERS 88 For the reasons given above, the appeal should be dismissed with costs. 89 The Court orders: (1) The notice of appeal filed 4 March 2015 be dismissed. (2) The appellant pay the first respondent's costs of the appeal to be taxed, if not agreed. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Migration Act 1958(Cth)s 36(2)(a), s

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