FEDERAL COURT OF AUSTRALIA

MZAEL v Minister for Immigration and Border Protection [2015] FCA 921

THE COURT ORDERS THAT:

1.    The name of the second respondent is amended by deleting “Refugee Review Tribunal” and inserting instead “Administrative Appeals Tribunal”.

2.    The appeal is dismissed.

3.    The appellant is to pay the first respondent’s costs to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1    The appellant is a citizen of Sri Lanka, though his principal language is Tamil. An important feature of this case is the appellant’s adherence to the Muslim faith. The reasons for that will emerge shortly. The appellant was born in Sri Lanka in 1977. He came to Australia in May 2011. He entered Australia from Nauru, holding a temporary transit visa. Shortly after his arrival in Australia, the appellant applied for that class of visa under the Migration Act 1958 (Cth) (the Act), known as a Protection (Class XA) Visa (protection visa).

2    There were a number of bases for the appellant’s claim for a protection visa. He claimed that he had fled Sri Lanka in fear for his life from:

The members and supporters of the ruling WPFA party, with the support of the Sri Lankan authorities.

His fear was said by him to be based both on political opinion as well as his Muslim faith. The political opinion basis for his claim derived from, so he said, his support for the UNP party.

A delegate of the Minister for Immigration and Border Protection (Minister), who is the first respondent, refused to grant the appellant a visa on 21 March 2012. As was his right under the Act, the appellant then sought the review on the merits of the Minister’s delegate’s decision by the Refugee Review Tribunal. As a result of recent legislative change, the role of the Refugee Review Tribunal has been subsumed into the Administrative Appeals Tribunal.

3    That former Refugee Review Tribunal and the Administrative Appeals Tribunal have each quite properly adopted a submitting appearance. In recognition of the legislative change, I directed that the name of the second respondent be amended from the Refugee Review Tribunal to Administrative Appeals Tribunal.

4    The then Refugee Review Tribunal conducted a hearing in response to an offer made to the appellant. That hearing occurred on 19 February 2013. A transcript of the hearing before the Refugee Review Tribunal is to be found in the supplementary appeal book.

5    In addition to the evidence given by the appellant at the hearing, the Refugee Review Tribunal had the benefit of a comprehensive submission prepared on the appellant’s behalf by lawyers specialising in migration matters. In addition, the Refugee Review Tribunal was provided with a report by a person described as “counsellor advocate” and a consultant psychiatrist who had assessed the appellant. The Refugee Review Tribunal was also provided with a copy of a summons and an English translation thereof, apparently issued by a Magistrates Court at Kandy in Sri Lanka to the appellant. That summons concerned an alleged violation by the appellant of emergency regulations and required an appearance before the court in May 2010.

6    The comprehensive written submission made on behalf of the appellant also referred to various items of third party information concerning the situation in Sri Lanka. In addition, it is apparent from the reasons of the Refugee Review Tribunal member that she had regard also to country information concerning Sri Lanka.

7    It was not until 2014 that the Refugee Review Tribunal came to make a decision in respect of the review application. On 28 April 2014, for reasons which were set out by the Refugee Review Tribunal member, the Refugee Review Tribunal decided to affirm the Minister’s delegate’s decision not to grant the appellant a protection visa. Those reasons and the decision of the Refugee Review Tribunal were sent to the appellant under cover of a letter dated 30 April 2014.

8    The appellant then sought the judicial review of the Refugee Review Tribunal’s decision by the Federal Circuit Court. On 25 March 2015, the Federal Circuit Court of Australia (Federal Circuit Court) dismissed the appellant’s judicial review application. It is from that judgment that the appellant now appeals to this Court. There are two grounds of appeal:

(1)    The learned judge erred in finding that the integer claim was addressed by the Tribunal when in fact the appellant complaints that his right to worship or the religious freedom was not assessed.

(2)    The learned judge erred in finding that the tribunal complied with s 414 of the Act but in fact has not given any conscious consideration to the mental health of the appellant nor to the counsellor’s report submitted to the Tribunal. By doing so it fell into jurisdictional error.

9    I turn then to the merits of the grounds of appeal.

10    Ground 1: There is no doubt that a failure on the part of the Refugee Review Tribunal to consider an integer of a claim for a protection visa will amount to jurisdictional error: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389. Such a failure amounts to a constructive failure to exercise the review jurisdiction consigned to the Refugee Review Tribunal. So much was correctly accepted by the Minister. The appellant’s point, put with commendable precision in his written and oral submissions, was that the Refugee Review Tribunal had conflated his Tamil ethnicity with his adherence to the Muslim faith. If the Refugee Review Tribunal had indeed just considered the appellant’s case as that of someone who feared persecution on the basis of being an ethnic Tamil it truly would have failed to recognise an important integer of the appellant’s claim for a protection visa.

11    Just such a claim featured as ground 1 in the appellant’s grounds of review before the Federal Circuit Court. The learned Federal Circuit Court judge concluded that the Refugee Review Tribunal had considered the separate aspect of harm feared on the basis of the appellant’s adherence to the Muslim faith: see paras 17 to 24 of the reasons for judgment of the Federal Circuit Court.

12    It is always important when considering the reasons given by an officer of the executive government of which the Refugee Review Tribunal member is an example, not to read those reasons narrowly and with an eye for error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The Refugee Review Tribunal offered what the member took to be a summary of the risk of harm asserted by the appellant at para 36 of the Refugee Review Tribunal’s reasons. Significantly, in my view, the Refugee Review Tribunal member concluded her summary in this way:

It is argued that, due to his religion, other Tamils consider the applicant to be different due to being Muslim, and Muslims face continued denial of rights and attacks on religious sites.

The Sinhalese majority targets Tamil-speaking Muslims along with ethnic Tamils.

13    At paras 38 and, in particular 39, the Refugee Review Tribunal made a detailed assessment of the basis for the appellant’s claim based on his ethnic origin as well as his religious beliefs. In particular, my reading of para 39 is that the Refugee Review Tribunal expressly, and separately, engaged with the appellant’s claim based on his Muslim faith, hence the reference to “Muslims or Tamil-speaking Muslims”.

14    I accept the appellant’s submission that his claim did have an aspect based solely his religious beliefs. The Minister quite properly came to concede this, having had the benefit of reviewing the transcript of the hearing before the Refugee Review Tribunal. Even so, the end result of my separate reading of the Refugee Review Tribunal’s reasons is that I have come to agree with the view of the Federal Circuit Court judge. In other words, I, too, conclude that the Refugee Review Tribunal did engage both with the Tamil ethnic basis and political view basis of the appellant’s claim for a protection visa, as well as the separate basis grounded in his Muslim faith.

15    In concluding that the appellant’s claim for a protection visa had, as its basis, nothing more than a remote rather than real chance of persecution, the Refugee Review Tribunal made value judgments as to the appellant’s credibility and findings of fact on the evidence that were reasonably open. It is important in relation to the judicial review of decisions of the Refugee Review Tribunal and also on appeal from judicial review proceedings that a principled restraint be exercised by those exercising judicial power in relation to findings so based. The reasons for that restraint were never, with respect, better expressed than by Sir Gerard Brennan in Attorney-General for New South Wales v Quin (1990) 170 CLR 1 (Quin’s case). Unless that restraint is exercised, the exercise of judicial power loses its legitimacy.

16    Ground 2: Regard to para 49 of the Refugee Review Tribunal’s reasons discloses that the Refugee Review Tribunal did have regard to the evidence of the consultant psychiatrist. Further, that paragraph in particular is evidence that the Refugee Review Tribunal did engage with the comprehensive submission based on that psychiatrist’s report and that of the counsellor. It was a feature of the procedure adopted by this particular Refugee Review Tribunal member that she granted time after the hearing for the appellant to obtain a report from the psychiatrist: see para 13 of the Refugee Review Tribunal’s reasons. The conclusion reached by the Refugee Review Tribunal member was that she did not accept the cumulative evidence and material advanced offered a sound basis for finding that the appellant faced a real chance of serious harm now or in the reasonably foreseeable future in Sri Lanka deriving from his mental health.

17    The Refugee Review Tribunal returned to the subject of the appellant’s mental health when considering the complementary protection aspect of his claim: see para 53. The learned Federal Circuit Court judge, in dealing with ground 3 of the judicial review application, concluded that the Refugee Review Tribunal had considered the aspect of mental health as raised in the psychiatric report: see paras 37 to 39 of the Federal Circuit Court’s reasons for judgment. Like the Federal Circuit Court, I consider that the Refugee Review Tribunal reached conclusions reasonably open, even taking into account, as the Refugee Review Tribunal did, the psychiatrist’s report and that of the counsellor.

18    This was a case which was complicated by the separate aspect of the appellant’s Muslim faith in addition to his Tamil ethnicity and related political beliefs. I am satisfied, as was the Federal Circuit Court, that the requisite degree of separate attention to the various bases of the claim for a protection visa was given by the Refugee Review Tribunal. The appellant’s claim looks to have been well presented to the Refugee Review Tribunal. Further, it appears to me that the Refugee Review Tribunal adopted a very fair approach to the allowing of time for the development of the appellant’s submission.

19    It does not follow from the fact that the appellant’s submission was well developed that the Refugee Review Tribunal was bound to accept it. In the end, the Refugee Review Tribunal reached conclusions on the whole of the material, including the submission, which were not favourable to the appellant. Like the Federal Circuit Court, I consider those conclusions were reasonably open. For reasons which I have already given by reference to Quin’s case, it is nothing to the point as to whether I would have reached those same conclusions on the factual merits.

20    It necessarily follows that the appeal must be dismissed.

Associate:

Dated:    24 August 2015