MZZER v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of a judge of the Federal Circuit Court of Australia ("the primary judge"). The primary judge dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the first respondent Minister to refuse the appellant's application for a protection visa. 2 The appellant is a citizen of Sri Lanka and is of Tamil ethnicity. He claimed to fear serious harm from the Sri Lankan authorities, their paramilitary groups and the Liberation Tigers of Tamil Eelam ("the LTTE"). He said he would be harmed due to his Tamil ethnicity, his status as a wealthy Tamil businessman and his relationship with his uncle. His uncle had owned a jewellery shop in Sri Lanka. 3 A delegate of the Minister was not satisfied that the appellant had a real chance of persecution for a reason found in the Refugees Convention. The delegate also rejected the appellant's claim for complementary protection based on s 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act"). 4 The appellant sought a merits review of the delegate's decision before the Tribunal. The Tribunal accepted that the appellant lived with his uncle in Jaffna from a young age to avoid being recruited by the LTTE. The Tribunal also accepted that, in 2006, the authorities accused him of supporting the LTTE. It further accepted that his uncle had fled Jaffna, and later Sri Lanka, after being shot outside his jewellery shop. About one month after that incident, the appellant opened his own jewellery store, which was quite profitable. However, the Tribunal rejected the appellant's claim to have been targeted in 2006-2007 and 2012, as well as his claim that his brother had recently been threatened by authorities when they made enquiries about the appellant's whereabouts. 5 The Tribunal's rejection of the above claims stemmed from inconsistent evidence given by the appellant, his reliance on fabricated documents and the gap between the alleged threats in 2006-2007 and 2012. 6 The Tribunal found that, based on country information and the appellant's individual circumstances, he did not face a real chance of persecution on the basis of his Tamil ethnicity or by reason of his membership of any particular social group such as young, male Tamils from the North. The Tribunal also rejected the appellant's claim to have been targeted due to his membership of a particular social group of "wealthy Tamil businessmen". In so doing, it found that the appellant and his brothers had been conducting a profitable business in Jaffna for a long time without being the subject of any extortion threats. 7 The issue of whether the appellant would face serious harm on his return as a consequence of being a failed asylum seeker was then considered by the Tribunal. It rejected that claim. It referred to country information supporting the view that there is no evidence of mistreatment of failed asylum seekers by the Sri Lankan authorities. 8 Considering the claims cumulatively, the Tribunal found that the appellant did not face a real chance of persecution if returned to Sri Lanka. It rejected the protection claims and the complementary protection claims. 9 The appellant then sought judicial review in the Court below. The application contained two grounds. The first ground alleged that "the Tribunal misconstrued the forward-looking 'real chance' test in considering the applicant's claim to have a well-founded fear of persecution arising from his membership of a particular social group, being 'wealthy Tamil businessmen'." The second ground concerned the way the Tribunal dealt with various documents. 10 Counsel represented the appellant before the primary judge. Counsel referred the primary judge to the real chance test as being a forward-looking one, relying on the judgment of Mason CJ in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 389. 11 The primary judge accepted that submission as soundly based but considered that on a fair reading of the Tribunal's reasons, it applied the real chance test properly. At [36], the primary judge said: …the Tribunal was clearly aware that some…wealthy Tamil businessmen in Jaffna …had been the subject of extortion. The Tribunal relevantly found that the applicant's uncle had been the subject of attack in 2006, but that otherwise, no harm had been visited upon the applicant, even though he had been operating his own business successfully there since 2006. 12 The primary judge concluded that, in the abovementioned circumstances, it was open to the Tribunal to say that the chances of future harm occurring to the appellant were not sufficient to support a finding that he had a well-founded fear of persecution. 13 Ground 2 of the application below complained that the Tribunal did not put to the appellant its concern that the appellant had submitted fraudulent documents to it. His Honour found that the delegate had raised an issue about the authenticity of one of the documents and that the authenticity of the second document had been raised by the Tribunal. 14 On appeal to this Court, the appellant raises one ground only. This ground of appeal repeats, in effect, the first ground of review below. It asserts that the Court below erred in failing to find that the Tribunal had misconstrued the real chance test in considering whether the appellant had a well-founded fear of persecution arising from his membership of the particular social group of wealthy Tamil businessmen. 15 The Tribunal dealt with this issue at [61] of its reasons for decision. There it said: I have accepted that the applicant's uncle was targeted for extortion in 2006 and that he was shot by unidentified men because of this. I also accept that the applicant is a wealthy man by Sri Lankan standards and that his business did and continues to do very well. However, as previously found I do not accept that the applicant or his family have been subjected to any targeting or adverse treatment as claimed in 2007 and 2012. I accept that "wealthy Tamil businessmen" do constitute a particular social group in Sri Lanka and there is some independent evidence that police imposters and paramilitaries do extort businesses in Jaffna and in Sri Lanka. The applicant and his brothers have been conducting a profitable jewellery business in Jaffna for a long period and they have not been the subject of any extortion threats. Given this and considering the country information, I do not accept that there is a real chance that the applicant will be subjected to extortion threats or face a real chance of persecution on account of his membership of the particular social group of "wealthy Tamil businessmen" now or in the reasonably foreseeable future. Nor do I accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka that there is a real risk of the applicant suffering significant harm for these same reasons. [Emphasis supplied]. 16 The italicised portion of the Tribunal's reasons at [61] referred to in the preceding paragraph is a reference to [52] of the Tribunal's reasons where, under the heading "Extortion" the Tribunal said: In September 2010, DFAT noted that there had been reports that the "EPDP demands payments from tamil businesses in Jaffna". DFAT also noted that "some businesses in Batticaloa District have been asked to make payments to individuals associated with local political/paramilitary groups in return for not being harassed/threatened." DFAT further noted that "Police (CID/TID) imposters and paramilitary cadres have threatened to label individuals as LTTE activists if payments are not made". 17 The outcome of this appeal turns on this proper construction of the effect of the Tribunal's reasoning at [61] informed by its reference to country information at [52]. There is no dispute that the Tribunal found the existence of a particular social group known as wealthy Tamil businessmen and that the appellant belonged to that social group. Further, counsel agree that the Tribunal was obliged to apply the real chance test in Chan and that the test is a forward-looking one, in which it is not necessary to prove that past persecution had occurred; see Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [58]. There, McHugh and Kirby JJ said: Whether members of a particular social group are regularly or often persecuted usually assists in determining whether a real chance exists that a particular member of that class will be persecuted. Similarly, whether a particular individual has been persecuted in the past usually assists in determining whether that person is likely to be persecuted in the future. But neither the persecution of members of a particular social group nor the past persecution of the individual is decisive. History is a guide, not a determinant. Moreover, helpful as the history of the social group may be in determining whether an applicant for a protection visa is a refugee for the purpose of the Convention, its use involves a reasoning process that can lead to erroneous conclusions. It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a "well-founded fear of being persecuted for reasons of … membership of a particular social group". See also at [74] per Gummow and Hayne JJ. 18 Counsel for the appellant submitted that the Tribunal failed to apply the real chance test by relying on the lack of past persecution of the appellant and thereby not focusing on the prospect of future persecution, despite the country information pointing to the extortion members of the group. That submission invites an overzealous examination of the language used by the Tribunal. The effect of the Tribunal's analysis at [61] of its reasons, fairly and objectively construed, may be expressed as follows: there is a particular social group known as "wealthy Tamil businessmen"; the appellant is a member of that social group; country information shows that some members of the social group have been the subject of extortion; the appellant conducted his business in Jaffna over a long period of time and did not suffer persecution in so doing; and balancing the prospect of extortion of some members of the group against the appellant's actual experience, this individual appellant does not have a well-founded fear of persecution for reasons of his membership of the social group. 19 The primary judge's analysis, in his rejection of the appellant's submission on this alleged jurisdictional error, was not in the same terms as that expressed in the preceding paragraph. Rather, at [36] and [37] of the judgment below, his Honour said: In my view, the Tribunal was clearly aware that some (by no means all) wealthy Tamil businessmen in Jaffna (where the applicant had lived) had been the subject of extortion. The Tribunal relevantly found that the applicant's uncle had been the subject of attack in 2006, but that otherwise, no harm had been visited upon the applicant, even though he had been operating his own business successfully there since 2006. For the Tribunal to say in these circumstances that the chances of harm in the future were not sufficient to grant a refugee finding seems to me to have been entirely open to it. This ground must fail. 20 Notwithstanding that the above analysis of his Honour of the crucial reasoning of the Tribunal does not accord precisely with this Court on appeal, his Honour was nevertheless correct to find that no relevant jurisdictional error had occurred. 21 The appeal must be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.