FEDERAL COURT OF AUSTRALIA

MZYPY v Minister for Immigration and Citizenship [2012] FCA 877

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1    This proceeding is an appeal from the judgment of the Federal Magistrates Court (MZYPY v Minister for Immigration Citizenship and Anor [2011] FMCA 1003).

2    The appellant is a citizen of Sri Lanka of Tamil ethnicity. He left Sri Lanka illegally and arrived in Australia by boat on 17 March 2010 at Christmas Island. He is an “offshore entry person” and an “unlawful non-citizen” for the purposes of the Migration Act 1958 (Cth) (“the Act”) because he arrived at Christmas Island, which is an “excised offshore place”, without a visa or other legal right to enter Australia. He was put into detention pursuant to the Act.

3    The appellant claims refugee status - that is, he contends that he meets the definition of a refugee in Article 1A of the United Nations 1951 Convention Relating to the Status of Refugees, and the 1967 Protocol Relating to the Status of Refugees (“the Refugees Convention”) to whom Australia owes protection obligations.

4    By operation of s 46A(1) of the Act, as an unlawful non-citizen the appellant cannot make a valid application for a visa. However, the Minister for Immigration and Citizenship (“the Minister”) has a power under s 46A(2) to permit the appellant to apply for a visa. The Minister decided to consider exercising that power to lift the bar preventing the appellant from applying for a visa. To that end the appellant was invited by the Minister’s department - the Department of Immigration and Citizenship (“the Department”) - to make an application for refugee status through a Refugee Status Assessment (“RSA”). He was also offered a review of any negative RSA through what the Department calls an Independent Merits Review (“IMR”). Through the RSA or IMR a recommendation and report would be made to the Minister which he may, or may not, take account of in making a decision under s 46A(2). This administrative process is described in more detail in Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319.

5    The appellant was interviewed on arrival in Australia by a Departmental officer and notes were taken of the interview (“the appellant’s first statement”). He lodged a request for an RSA on 28 May 2010. As part of the RSA he submitted a Statutory Declaration made on 28 May 2010 (“the appellant’s second statement”). He was then interviewed by a Departmental officer on 31 May 2010 as part of the RSA and notes were taken of the interview (“the appellant’s third statement”). On 10 December 2010 the Departmental officer recommended that he not be recognised as a refugee under the Refugees Convention.

6    On 24 January 2011 the appellant applied for review of the RSA through an IMR. On 14 May 2011 he was given a hearing by the Independent Merits Reviewer (“the Reviewer”), the second respondent Mr H. Wyndham and a transcript of the interview was taken (“the appellant’s fourth statement”). On 7 July 2011 the Reviewer also recommended that the appellant not be recognised as a refugee.

7    The appellant sought judicial review of the IMR in the Federal Magistrates Court. On 21 December 2011 the learned Federal Magistrate dismissed the application. The appellant now appeals to this Court against the decision of the Federal Magistrate. The first respondent, the Minister, opposes the appeal. The Reviewer has filed a submitting appearance. The appellant contends by his Notice of Appeal that there is a jurisdictional error in the decision of the Federal Magistrates Court and that the reasons provided by the Reviewer were neither logical nor rational, but he does not particularise these contentions.

8    Upon the hearing the appellant applied for an adjournment. As I set out below, I refused to adjourn the appeal. For the reasons I set out below, I order that the appeal be dismissed and that the appellant pay the first respondent’s costs.

The application for adjournment

9    The Notice of Appeal to the Federal Court was filed on 6 January 2012. The Court file records that on 23 January 2012 the secretary to the National Appeals Registrar (“Registrar”) had a telephone conversation with a person from the Australian Tamil Congress who was assisting the appellant. The appellant’s representative advised that the appellant was making attempts to obtain legal aid and legal representation. On 21 February 2012 the Registrar advised the appellant’s representative that the appeal would be listed in the May 2012 sittings of the Full Court. The Court file records that the representative considered this was “plenty of time” for the appellant to obtain legal representation. On 21 March 2012 the appellant was advised in writing that the appeal was listed for hearing before me on 15 May 2012.

10    By letter dated 16 April 2012 the appellant sought an adjournment of the hearing. He stated that his earlier legal firm had declined to represent him and that he had difficulties in reaching other lawyers as he was depressed, lacked English speaking skills and was in detention. He stated that he was in touch with a refugee support group and requested an adjournment for “a few more weeks” so that he could organise a lawyer. The Minister did not oppose the application and on 24 April 2012 I granted the adjournment sought.

11    By letter dated 8 May 2012 the Registrar advised the appellant that the appeal would be heard in the sittings 30 July to 21 August 2012. The appellant was then advised that the appeal was fixed for hearing before me on 31 July 2012. As a result the appellant obtained an adjournment of two and a half months rather than the few weeks he requested.

12    By letter dated 12 July 2012 the appellant again sought an adjournment for “a few weeks”. This letter was in part a copy of the earlier letter, reiterating that his earlier legal firm had declined to represent him and that he had difficulties in reaching other lawyers as he was depressed and lacked English speaking skills. He again stated that he had only just managed to get in touch with some refugee support groups but this cannot have been correct as he said the same thing in his letter of 16 April 2012. The only new information in his letter was that he had been released from detention on a bridging visa on 11 May 2012 and had arrived in Melbourne a few days later, although he said it had taken him some time to adjust to a new environment. The Minister opposed the application for a further adjournment and on 16 July 2012 I refused it.

13    At the hearing on 31 July 2012 the appellant did not have legal representation, although he was assisted by an interpreter. He advised the Court that he had now found a lawyer and he requested an adjournment so that his case could be prepared properly. The solicitors for the Minister indicated that in the previous week they had received a telephone message from a lawyer who said that she was representing the appellant, but this lawyer had not then responded to two telephone calls made by the solicitors. The solicitor for the Minister had received nothing in writing from a lawyer advising that he or she acted for the appellant, and the Court has had no contact from any lawyer on behalf of the appellant. It appeared that the appellant had not expected his lawyer to appear on 31 July 2012, although no explanation was offered as to why the appellant (and perhaps his lawyer) had determined to proceed on this basis.

14    In the circumstances I declined to order an adjournment. I did not make this decision lightly as the appellant faces being returned to a country where he claims he faces persecution. It is plainly important that the appellant have access to judicial review of the IMR. However this must be balanced against the necessity for the Court to properly manage the cases before it and to have regard to the overarching purpose of facilitating resolution of disputes as quickly, inexpensively and efficiently as possible, as set out in s 37M of the Federal Court of Australia Act 1976 (Cth).

15    I refused the further adjournment application having previously adjourned the appeal for a substantially longer period than the appellant had sought, in circumstances where the further application for an adjournment in large part just reiterated the material from the earlier successful application. The further application for an adjournment also included an assertion that the appellant had only just been in contact with a refugee support group. This was not correct as he had stated in his letter of 16 April 2012 that he had been in contact with a refugee support group at that time. It was also significant that he had been out of immigration detention and living in Melbourne since mid May, which meant that he had two months to find and instruct a lawyer once out of detention. The only new information offered to the Court on 31 July 2012 was that the appellant had now found a lawyer, but the lawyer did not appear and there was no explanation offered as to why he or she did not.

the independent merits review

16    The appellant’s claim of a well founded fear of persecution is essentially based on the following claims:

(a)    he is a Tamil and during the period April 2003 to February 2007 he had been forced by the Liberation of Tamil Tigers of Elam (“LTTE”) to work in two different political/administrative offices of that organisation;

(b)    in about May 2004 Colonel Koruna broke away from the LTTE and started assisting the Sri Lankan government forces;

(c)    in May 2007 he had been forced to leave his home village and go to Colombo because he heard that militia controlled by Colonel Koruna (“the Koruna Group”) were rounding up Tamils suspected of working with or helping the LTTE;

(d)    in about November 2007 to January 2008 two friends of his who worked with him at the LTTE offices were kidnapped and remain missing;

(e)    on 15 January 2008 the Criminal Investigation Department (“CID”) came in search of him in Columbo, and he was forced to leave and stay elsewhere until September 2009;

(f)    on 14 September 2009 when he returned home for a religious festival he was captured by the Koruna Group. He claims he was interrogated and beaten for 18 days during which time he was fearful of being killed;

(g)    on 17 October 2009 he escaped from the Koruna Group and went to Colombo where he was able to obtain a false passport, fly to Indonesia and then make his way to Australia by boat.

He claims a well founded fear of being killed by the Koruna Group as they know that he worked for the LTTE. He claims that the Koruna Group works with the Sri Lankan government and with the CID to round-up Tamils, and that he can therefore expect no protection from the authorities.

17    In the Reviewer’s Statement of Reasons he traverses the appellant’s claims in some detail and then concludes that there are numerous contradictions and inconsistencies in the appellant’s version of events and that the appellant is not telling the truth. This was a critical conclusion to the Reviewer’s finding that the appellant was not a person to whom Australia owed obligations of protection.

18    The contradictions and inconsistencies in the appellant’s claims found by the Reviewer include three different versions provided by the appellant as to how he had escaped from the Koruna Group on 17 October 2009. These inconsistencies appear to be a principal concern of the Reviewer with regard to his rejection of the appellant’s credit. In each of the versions the appellant said that he was being transported by motorcycle by the Koruna Group when the motorcycle broke down, but the Reviewer found inconsistencies in his versions of events thereafter. It is apparent from the reasons that the Reviewer found that:

(a)    In the appellant’s first statement he said that he was asked to stand by the roadside until some relief transport approached, and whilst he was standing there a bus approached which he boarded, eventually travelling to Colombo;

(b)    In the appellant’s second statement he said that while the members of the Koruna Group were repairing the motorcycle he was placed in a nearby food shop, the owner of which was asked to watch him. He said that he asked to go to the toilet and then escaped through the back door. He said that he ran until he came across a bus and got on, eventually travelling to Colombo.

(c)    In the appellant’s third statement he said that while one member of the Koruna Group was repairing the motorcycle, he was placed in a nearby food shop with another member of the group in front of a shop and with the owner also being asked to watch him. He again said that he asked to go to the toilet and then escaped through the back door and found himself on a road. Only a little further on he came upon a bus stop where he waited until a bus came, eventually travelling to Colombo.

(d)    In his fourth statement the appellant said that he did not “escape”, but rather he was allowed to go through payment of a bribe. When the motorcycle broke down one person was sent to find somebody to repair the motorcycle, and while he was away the appellant was allowed free. They were near a small village and there was a bus stop close by. He caught a bus, eventually travelling to Colombo.

The appellant sought to explain the inconsistencies primarily on the basis that he did not want to reveal that a bribe had been paid, as it might have had repercussions in Sri Lanka for those involved. The Reviewer was unconvinced by this explanation, in part because the bribe was not the only inconsistency as to that event, and also because he found inconsistencies in relation to other matters.

19    The other inconsistencies found by the Reviewer include the following:

(a)    In the appellant’s first statement he said that in about April 2004 Colonel Koruna released all of the conscripts as he was about to flee. However, in his second statement he said that in about May 2004 he was sent home for a month when the Koruna Group broke away from the LTTE. In his fourth statement he said that Colonel Koruna did not free the conscripts, and instead told the other officers that if the conscripts wanted to leave then they could. At another point of his fourth statement he said that after Colonel Koruna left the LTTE he and the other conscripts escaped.

(b)    In the appellant’s first statement he said that after the Sri Lankan army took control of the eastern province in February 2007 and the LTTE fled the area, he escaped the custody of the LTTE and went to a displaced persons camp. In his second statement he again said that at that time he used an opportunity to escape and return home, where he was placed in a displaced persons camp. In his third statement he said that in fact he had spent most of the time not staying in a displaced persons camp but staying with his sister nearby, only going to the camp when required to register.

(c)    In the appellant’s first statement he did not suggest that when he was captured and interrogated by the Koruna Group in September 2009 that he was interrogated about a friend who was a former manager of the LTTE who he said had disappeared in about January 2008, or about his possession of and the whereabouts of his friend’s laptop. In his second and third statements he again did not suggest that his friend or the laptop, had been a matter of interest in his interrogation. However, in his fourth statement he said that his friend had left his laptop in the appellant’s room before he disappeared, and that a significant part of the interrogation related to his friend and what the appellant knew about the whereabouts of the laptop.

20    The Reviewer accepted that some of the inconsistencies were minor and could be explained by the circumstances under which the appellant’s claims were made, but he considered that others could not be properly explained or excused. He globally rejected any reliance on the appellant’s claims.

21    The Reviewer also considered that the appellant’s failure to seek protection while he was in Malaysia was not consistent with his claim to fear persecution in Sri Lanka. The Reviewer did not accept that if the appellant was forced to return to Sri Lanka in the foreseeable future he faced a real chance of persecution by reason of his being of Tamil ethnicity, his real or imputed political opinion, or any other Refugee Convention reason. He recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the Refugee Convention.

The application to the Federal magistrates Court

22    The appellant made an application for judicial review to the Federal Magistrates Court on 2 August 2011, contending that the IMR was affected by legal error. The appellant was legally represented before that Court. In his reasons for judgment of 21 December 2011 the learned Federal Magistrate noted that the grounds of the application were contained in the contentions of fact and law filed. Those contentions are not before me, but the grounds are recorded in his Honour’s reasons for judgment as follows:

(a)    That the Reviewer failed to address the appellant’s claim to have suffered Convention related persecution in the past in the form of brutal interrogation by the Koruna Group in 2008;

(b)    That the Reviewer failed to consider a significant element of the appellant’s claim to have a well founded fear of persecution, namely that two of the people he had worked with at the LTTE had been abducted and never heard from again; and

(c)    That the Reviewer failed to make any clear finding as to whether or not the appellant had worked with the LTTE, this being a significant basis of the appellant’s claim to fear persecution as a result of imputed political opinion and/or membership of a particular social group.

23    The learned Federal Magistrate went through a number of the findings made by the Reviewer and then noted that the findings of the Reviewer were a comprehensive rejection of the appellant’s credit. His Honour stated:

19    In the ultimate, in my opinion, these findings were indeed a comprehensive finding as to the applicant’s credit. It is clear that with the exception of the one issue that was resolved to the Reviewer’s satisfaction, namely the question as to whether his former LTTE co-worker was his manager in Colombo, the Reviewer regarded the applicant’s accounts as unsatisfactory.

…

21    As the Full Court of the Federal Court said in WAEE, a conclusion that a Tribunal or Reviewer should be inferred not to have considered an issue as a result of failure to deal with an issue in its reasons should not be too readily drawn. If one reads the decision of the Reviewer as a whole, it is clear beyond doubt in my opinion that the Reviewer was well-seized of the particular claims the applicant made but simply did not believe them. Findings on credibility are the function of the primary decision-maker and a decision-maker who does not believe a witness does not necessarily need to give detailed reasons as to why that is so. See Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALD 407 at [67].

22    Accordingly I find the only conclusion that can be reached from the Reviewer’s decision is, contrary to the applicant’s submissions, that the Reviewer did not believe what the applicant said about being abducted and interrogated by the Karuna Group, did not believe that two of his alleged former LTTE colleagues had been abducted and not seen since, and did not believe that the applicant had worked for the LTTE as he described.

His Honour rejected the criticisms advanced as to the Reviewer’s reasons, found there was no jurisdictional error in the IMR, and dismissed the application.

The appeal to the federal court

24    The task of the learned Federal Magistrate in dealing with the administrative review application brought by the appellant was restricted to a determination as to whether the IMR was affected by jurisdictional error. His Honour’s task was to declare and enforce the law which determines the limit and governs the operation of that administrative process, and he had no jurisdiction to simply cure any administrative injustice or error by the Reviewer, or conduct a review of the merits of the Reviewer’s findings: Attorney General (NSW) v Quin (1990) 170 CLR 1 at 35 per Brennan J. This Court’s task is to determine whether his Honour’s judgment is affected by appealable error, and my review is restricted in its scope by the same considerations as applied below.

25    In the Notice of Appeal the appellant contends that there is a jurisdictional error in the decision of the learned Federal Magistrate, but no attempt is made to particularise that error. In that regard the appeal was liable to be struck out, but the Minister was content to proceed. In the absence of a properly particularised Notice of Appeal I have had regard to the grounds of appeal before the learned Federal Magistrate. At that time the appellant had legal representation, and the grounds provide a window into the appellant’s assertion of jurisdictional error. Although the appellant would require leave to advance any ground not raised below, as he did not have legal representation I have also considered the Reviewer’s reasons at large in an effort to ascertain whether any jurisdictional error can be discerned.

26    The first ground of appeal raised before the learned Federal Magistrate is that the Reviewer failed to address the appellant’s claim to have suffered Convention related persecution when interrogated by the Koruna Group. It is clear from paragraph 42 of the Reviewer’s reasons that he did consider the interrogation by the Koruna Group. At paragraph 41 of his reasons the Reviewer states:

41    There were several contradictions in the claimant’s oral statement at this interview with written or oral statements made previously. We discussed these differences at some length, without more than one being entirely resolved to my satisfaction…

42    Other discrepancies discussed included the circumstances under which he had left LTTE employe to return home in 2004, the sequence of events which led to his and his family’s being in a displaced person’s camp in 2007, whether it was the police or the Koruna Group which went to his home enquiring about him, the circumstances under which he went to his home village to attend a temple festival, the differences in his accounts of his Koruna Group interrogation in 2008 and the fact that he had, prior to that day’s interview, made no mention at all of a laptop being left with him by [name omitted] and the significance that had for his subsequent interrogation.

27    The reference in paragraph 42 to interrogation by the Koruna Group in 2008 can only be a reference to the appellant’s interrogation by that group in 2009. The appellant only claims that he was interrogated by the Koruna Group on the one occasion and the link in the passage above to his friends laptop makes it clear as a reference to that occasion. The incorrect date is merely a typographical error. It is plain that the Reviewer did consider the appellant’s claim that he was interrogated and beaten by the Koruna Group, as he records the claim and his view about discrepancies in the appellant’s account. His Honour found that the Reviewer rejected this claim on the basis that it was not truthful, and I can discern no appealable error in that finding.

28    The second ground of appeal raised before the learned Federal Magistrate is that the Reviewer failed to consider his claim that two of the people he had worked with at the LTTE had been abducted and never heard from again. It is apparent that the Reviewer was aware of this claim as he refers to it at various points in his reasons, but he does not specifically raise this claim as one in which he considered there were discrepancies in the appellant’s account. Even so, the overall rejection of the appellant’s claims is plain from the Reviewer’s findings where he states:

56.    I do not accept that the claimant’s account of his history is truthful. While there is a broad consistency in his various accounts of the reason he left Sri Lanka, there are simply too many inconsistencies in the detail for me to have confidence in his truthfulness. Some are minor and could be explained by the circumstances under which the claimant prepared himself and the documents which accompanied his applications. However, others cannot be so easily explained or excused. His explanation of some…does not cover adequately the discrepancies in his accounts of his interrogation by the Koruna Group or his escape from the Koruna Group escorts…

57    The claimant’s explanation of his failure to secure protection in Malaysia also undermines my faith in his truthfulness. What he told me may be true - that he attended the UNHCR offices 2 or 3 times and found too many people to register. However, a person in fear for their life would make a greater effort than that. He was in Malaysia for 3 months, according to his evidence, having gone there on a hastily arranged trip, without a defined further plan. Instead of pursuing protection with determination in Malaysia, he paid no doubt a large sum to a smuggler to travel to Australia. I find that his behaviour in Malaysia was not consistent with his claim to fear persecution in Sri Lanka. I find that he did not and does not have a genuine fear of persecution in Sri Lanka.

29    Were it the Court’s role to do so I may not have so readily drawn from the appellant’s failure to register at the UNHCR the same inferences as the Reviewer, or viewed the kind of inconsistencies cited by the Reviewer as necessarily indicative of a lack of genuineness or credibility. However, the assessment of the appellant’s credibility is a matter uniquely for the Reviewer and is not within the jurisdiction of this Court: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]. Even if the findings as to the appellant’s credit are wrong this does not constitute a jurisdictional error: NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 per Heerey, RD Nicholson and Selway JJ at [9].

30    There is no appealable error in the learned Federal Magistrate’s finding that there was no jurisdictional error in this aspect of the Reviewer’s reasons. The Reviewer considered and rejected the appellant’s claims on a global basis.

31    The same is true in relation to whether the Reviewer properly considered and made a finding as to whether the appellant had worked with the LTTE. That this claim was considered by the Reviewer is clear from his reasons as it is referred to at various points. However, the Reviewer does not expressly reject it. While it would have been better for the Reviewer to expressly do so I consider that his rejection of this claim is contemplated within his global rejection of the appellant’s account of his history. In my view his Honour was correct in concluding that the Reviewer comprehensively rejected the appellant’s credit and did not believe the appellant in relation to the various matters of fact which were fundamental to his claim of a well founded fear of persecution.

32    The rejection of each of the appellant’s claims is also clear from the Reviewer’s specific finding that the appellant “did not and does not have a genuine fear of persecution in Sri Lanka”. The finding that the appellant was not actually in fear of persecution at all is a comprehensive rejection of his account. Its effect is that he cannot meet the test in the Refugee Convention that he have a well-founded fear of persecution: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 per Heerey, Moore and Goldberg JJ at [29].

33    Finally, the appellant contends in the Notice of Appeal that the Reviewer’s reasons were “neither logical or rational”. I can discern nothing in the reasons which lacks logic or rationality, and in particular there is no apparent perversity or manifest error which might give rise to a finding of jurisdictional error.

Conclusion

34    I dismiss the appeal and order the appellant to pay the first respondents costs.

Associate:

Dated:    17 August 2012