FEDERAL COURT OF AUSTRALIA

MZYYI v Minister for Immigration and Citizenship [2013] FCA 457

THE COURT ORDERS THAT:

1.    The appellant’s application to amend his ground of appeal be refused.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of a Federal Magistrate (as he was then known), delivered on 7 December 2012, dismissing an application for judicial review of a recommendation of an Independent Merits Reviewer (“the Reviewer”): see MZYYI v Minister for Immigration and Citizenship [2012] FMCA 1153.

2    The appellant is a Sri Lankan citizen who arrived in Australia on 9 May 2010. On 8 July 2010 he requested a protection obligations evaluation. The matter was referred for an Independent Protection Assessment on 21 October 2010. The first reviewer found that the appellant should not be recognised as a person to whom Australia owed protection obligations. The appellant sought review of this recommendation in the Federal Magistrates Court (as it was then known), and, on 26 October 2011, the Court found that the recommendation was affected by legal error.

3    The matter was subsequently remitted to the Reviewer, who also found that the appellant should not be recognised as a person to whom Australia owed protection obligations.

4    On 20 February 2012, the appellant applied to the Federal Magistrates Court (now the Federal Circuit Court of Australia) for judicial review of the Reviewer’s recommendation. The application was dismissed. The appellant now appeals to this Court.

BACKGROUND AND REVIEWER RECOMMENDATION

5    Before the Reviewer, the appellant claimed that some of the claims made by him before the first Reviewer were false. The appellant said that he had made these false claims to hide the fact that he was a Liberation Tigers of Tamil Eelam (“LTTE”) member and to protect his siblings living in Sri Lanka, London, Australia and France.

6    The appellant said that he was of Tamil ethnicity and Hindu religion. He claimed that, in 1990, when he was about 14 years old, he was forcibly recruited by the LTTE along with five other boys from his school. He had been recruited because his family had four other sons and the LTTE considered that his family would not suffer significant hardship by his recruitment. He claimed that, between 1990 and 1992, he and other child recruits were educated at a school run by the LTTE and that, following this, he received about ten months training as a mechanic. The appellant claimed that, between 1993 and 1995, he worked as a mechanic repairing LTTE vehicles, and that, from 1995, he worked driving LTTE fighters to and from the front, taking the wounded to hospital and supplying food. He said that he was not combat trained and that he did not have a weapon, although he may have been photographed on one occasion holding a gun.

7    The appellant claimed that, in 2002, following a cease fire, he was released on request from the LTTE, and that, between 2002 and 2005, he worked as a farmer. He said that, in 2005, he moved to Colombo, married, and that, with his wife’s dowry, bought a van which he then used to work as a driver taking people from bus stops to their destinations.

8    The appellant asserted that, in 2006, the LTTE asked him to rejoin them, but he refused, instead offering them the use of his van or at other times giving them donations.

9    The appellant claimed that, in that year, his family were displaced by the war. In December 2008 he was injured in a bombing and spent three months in hospital. He claimed that, in May 2009, he and his family were taken by the Sri Lankan Army (“SLA”) and interred in a camp in Vavuniya. While in the camp, a man had accused him of being an LTTE member. His family tried to escape by sneaking under the fence but he was caught by members of the Eelam People’s Democratic Party of Sri Lanka (“EPDP”) who guarded the fence. He claimed that he tried to bribe the EPDP members to let him escape but that they did not think the amount was enough and they only allowed him and his family to flee after they took all the money in his wife’s handbag. The EPDP had not reported the escape to the SLA because of the bribe.

10    The appellant claimed that, after their escape, the family stayed at a cousin’s house for two days, before travelling to Colombo by train. The police were not suspicious of him because he was able to convince them that he was travelling for medical treatment. The police issued him with a letter permitting him to stay in Colombo for 15 days and this period was later extended to about a month. He claimed that, while in Colombo, he organised with a Sinhalese man to buy a fake passport which he used to depart the country through Colombo airport. He travelled to India. The rest of his family had travelled on legitimate passports to India. They stayed together in India for about six months, during which time they were supported with money from his brother in London. The appellant claimed that, in April 2010, he paid to travel on a boat from India to Australia.

11    The appellant maintained that he could not return to Sri Lanka for fear of the SLA and paramilitary groups because of his Tamil ethnicity, his age and his association with the LTTE, and that he knew of men like himself who had been imprisoned indefinitely and tortured. He claimed that Tamils will never have a free, peaceful and happy life in Sri Lanka.

12    Despite identifying significant discrepancies in the accounts he had given to the first and second reviewers, the Reviewer accepted the claims made before her by the appellant as to his LTTE profile, family and escape from Sri Lanka. The Reviewer did not, however, accept that the appellant would be targeted by paramilitary groups because of his age, links to the LTTE or any other Convention reason, or that he would be persecuted by authorities because of his ethnicity, his LTTE past, his physique or other reason. The Reviewer found that there was no evidence to suggest that the appellant would engage in any political activity that would attract the adverse attention of Sri Lankan authorities, and that, although there may be a high military presence in areas of Sri Lanka that may intrude on daily life, this did not amount to persecution.

13    Although the Reviewer acknowledged that the appellant may be subject to greater scrutiny on arrival in Sri Lanka than some other returnees, she found that this procedure would not be discriminatory. Rather, the Reviewer found that such checks were a procedure of general application appropriate for Sri Lankan authorities to be carrying out in order to achieve security checks, and that, should the appellant come to the adverse attention of the authorities during these checks, it would be as a result of laws of general application and not for a Convention reason. The Reviewer also noted that, although the appellant had been a member of the LTTE, his low profile within the organisation meant that the provisions of Article 1F of the Convention were not engaged.

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

14    In his application filed in the Federal Magistrates Court the appellant advanced a single compound ground:

“1.    The Independent Merits Reviewer (“IMR”) failed to accord procedural fairness and/or erred in law and/or failed to act judicially in that there was no evidence or probative material to support the findings and/or critical findings made by the IMR that there were categories of former LTTE members who would not be at risk upon return to Sri Lanka and that the Applicant was a member of such categories.”

15    The appellant was represented by Counsel. Counsel directed attention to various findings made by the Reviewer and submitted that those findings were not supported by evidence or probative material.

16    The Federal Magistrate referred to various decisions of this Court which have held that the “no evidence” ground of review will not be made out unless it is established that there is no evidence at all to support a critical finding: see for example VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302 at [17] (per Heerey J) and SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 at [31] (per Kenny J). The Federal Magistrate then examined each of the adverse findings which had been made by the Reviewer and found that there was evidence before her which supported each finding. He concluded that the Reviewer had “considered all integers of the [appellant’s] claims.”

17    Having found no reviewable error the Federal Magistrate dismissed the appellant’s application.

THE PRESENT APPEAL

18    At the beginning of today’s hearing the appellant sought leave to amend his single ground of appeal so that it read:

“The Federal Magistrates Court … should have found that the Independent Merits Reviewer failed to exercise or acted in excess of jurisdiction and erred in law because she failed to consider the claim raised by the appellant that he had a well-founded fear of persecution by reason of being a returned asylum seeker.”

19    His application to amend was opposed by counsel for the Minister on the ground that the issue had not been raised below.

20    On the eve of the hearing the appellant belatedly filed some written submissions. In those submissions he argued that the Reviewer had failed to consider a claim made by him that he would suffer persecution upon return to Sri Lanka “by being an asylum seeker” in Australia. As a result of this alleged failure, it was submitted that the Reviewer had failed to discharge her duty to consider all claims made by the appellant and that, as a result, the Federal Magistrate had erred in finding that the Reviewer had “considered all the integers of the [appellant’s] claims.” The integer which was said not to have been considered was the treatment the appellant might be expected to undergo at the hands of the Sri Lankan security authorities upon return to that country.

21    It is far from clear that any claim was made by the appellant to the Reviewer that he would face persecution in Sri Lanka because he had made an application for asylum in Australia.

22    Counsel pointed to some general references in the material to the condition of Tamils in Sri Lanka, their trouble with police and paramilitaries and the appellant’s fear that, as a Tamil, he would be persecuted on his return. A claim that the appellant would suffer persecution as a failed asylum seeker had been made to the first reviewer. That claim was not renewed in submissions to the Reviewer.

23    The issues on the second review were identified by solicitors acting for the appellant in written submissions to the Reviewer. Those issues were said to be whether the appellant had a well-founded fear of being persecuted owing to his Tamil ethnicity or his political opinion or membership of a particular social group, being a former member of the LTTE and whether the appellant was excluded from protection under article 1F of the Convention. The developed submissions did not raise a claim that the appellant faced persecution upon his return to Sri Lanka by reason of him being a failed asylum seeker in Australia.

24    The only claim which he had made which bore any similarity to the one alleged was “that he would be differentiated from other returnees because he would be returning as a male Tamil who departed on a false passport”: see Reviewer’s reasons at [73]. In dealing with this claim the Reviewer had regard to country information reports from the Danish, British and Canadian Governments. Those reports dealt with the treatment of returned irregular immigrants and failed asylum seekers. They concluded “that aside from normal procedures for questioning returnees, Tamils are not at any particular risk on return to the country, unless suspected of a crime or LTTE membership.”

25    This led the Reviewer to conclude (at [77]) that, having regard to the appellant’s low profile and the country information, she was “satisfied that if he comes to the adverse attention of the authorities for departing Sri Lanka illegally that would be the result of an application of the general law and not for a Convention reason” and (at [76]) that:

“Having regard to this profile and the country information about the treatment of failed asylum seekers and returnees – I am satisfied that the procedure is not discriminatory in its terms and intent or that it would be selectively enforced to the detriment of the claimant. I conclude that the procedure for processing failed asylum seekers and returnees is appropriate to achieving security checks of nationals seeking re-entry to Sri Lanka.”

26    The Reviewer thus dealt with the claim that was before her relating to a fear of adverse attention arising from the appellant’s departure on a false passport. In dealing with that claim the Reviewer had regard to country information which reported on the experiences of Tamils returning to Sri Lanka having departed using false documents and having made unsuccessful claims for asylum in other countries. The relevant “integer” (assuming that it is properly so characterised) was, as a result, considered by the Reviewer even though the appellant had not specifically raised the issue before her. The Federal Magistrate was not, therefore, in error in finding that the Reviewer had considered all the integers raised by the appellant’s claims.

27    Even if it be assumed that the appellant’s appeal ground raises the point, it can hardly be found that the Federal Magistrate made the alleged appellable error in circumstances where the argument which is now advanced alleging error on the part of the Reviewer was not pursued before him: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]; Aupeerapatthana v Minister for Immigration and Citizenship [2011] FCA 887 at [15]-[18].

DISPOSITION

28    Leave to amend the ground of appeal must be refused. The appellant did not press his original ground. The appeal must therefore be dismissed with costs.

Associate:

Dated:    16 May 2013