FEDERAL COURT OF AUSTRALIA

MZZAT v Minister for Immigration and Citizenship [2013] FCA 791

THE COURT ORDERS THAT:

1.    The notice of appeal dated 4 June 2013 be dismissed with costs.

2.    The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

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

REASONS FOR JUDGMENT

introduction

1    By a notice of appeal dated 4 June 2013, the appellant appeals from the decision of a Federal Circuit Court Judge, given on 17 May 2013. The Federal Circuit Court Judge dismissed the appellant’s application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (“the Tribunal”), given on 24 August 2012, which affirmed the first respondent’s refusal to grant the appellant a Protection (Class XA) visa.

2    The appellant was not legally represented at the hearing of the appeal and appeared with the assistance of an interpreter. The appellant made no submissions save to state that he wished his case to be remitted to the Tribunal.

3    The respondent relied on written submissions dated 30 July 2013.

4    The appellant is a Sri Lankan citizen who arrived in Australia on 30 September 2007 on a TU573 Student visa, returned to Sri Lanka on 30 December 2008 and then returned to Australia on 29 January 2009. He ceased studying in Australia in November 2010. On 11 March 2011, he applied to the Department of Immigration and Citizenship for a protection visa.

5    On 18 July 2011, the appellant was invited to attend an interview with the Department of Immigration and Citizenship. On 31 August 2011, a delegate of the first respondent made a decision to refuse the application for a Protection (Class XA) visa.

6    On 27 September 2011, the appellant applied to the Tribunal for review of the delegate’s decision. The appellant appeared before the Tribunal on 15 March 2012 with the assistance of a Sinhala/English interpreter. On 24 August 2012, the Tribunal affirmed the decision of the first respondent, by his delegate, not to grant the appellant a Protection (Class XA) visa.

7    On 20 September 2012, the appellant applied to the Federal Magistrates Court, now Federal Circuit Court of Australia, for judicial review of the Tribunal’s decision. On 4 October 2012, the respondents filed a response. The appellant filed written contentions of fact and law dated 23 January 2013 and the respondents filed an outline of submissions in response dated 22 February 2013. The appellant was not legally represented at the hearing.

8    On 17 May 2013, Judge Hartnett dismissed the appellant’s application.

THE APPELLANT’S CLAIMS

9    The appellant claimed to have a well-founded fear of persecution by reason of his political profile in Sri Lanka.

10    In his visa application and before the Tribunal, the applicant claimed that:

(a)    He was born on 2 December 1984 in Mahamadara in the Galle district of Sri Lanka and he grew up in Dickwella in the Matara district of Sri Lanka.

(b)    His father was “heavily and actively” involved in politics in Sri Lanka and a “very strong and ardent” supporter of the United National Party (“UNP”). Due to his involvement with the UNP, his father received death threats from the People’s Alliance’s (“PA”) supporters.

(c)    In 2003, the appellant joined the UNP and became an “active and loyal member” of the party.

(d)    He and his father “took a very big part in helping” the UNP with the presidential elections in 2005 and he was “actively” involved in campaigning in the Matara district, attending rallies and meetings, handing out pamphlets, putting up posters, hanging flags and collecting money.

(e)    During the election, there was much violence and the appellant was subjected to “constant threats, harassment and property damage from … PA supporters”. He received no assistance from police when he complained. His father donated a number of cars to the UNP which were subsequently “stoned” and he and his father received “cuts and bruising”.

(f)    On the day before the election, his father’s house was “stoned”, windows were broken and the house was daubed with PA slogans.

(g)    After the PA candidate, President Rajapakse, won the election, his father’s business was attacked by PA supporters who broke the windows.

(h)    In 2006, he “actively” campaigned on behalf of the UNP candidate contesting the local council elections. He and his family were subjected to “a lot of threats and harassment from PA supporters”.

11    The appellant claimed that he left Sri Lanka for Australia on 29 September 2007. He then returned to Sri Lanka in December 2008 because his father had become unwell. The appellant claimed that within a week of his return to Sri Lanka, strangers came to his parents’ house asking for him. He moved in with friends of his father because he was too afraid to live at home.

12    The appellant further claimed that there has been a “drastic change in the political landscape of Sri Lanka” since the election of President Rajapakse and subsequent changes to the constitution entrenching him as President for life. He claimed that, as the PA is the ruling party in Sri Lanka, UNP members and supporters will be subject to ongoing persecution. He could not return Sri Lanka because he would suffer persecution at the hands of PA members and supporters due to his political opinions and political profile and the state would be unable to guarantee his safety.

The tribunal’s decision

13    The Tribunal found that the appellant was a national of Sri Lanka.

14    The Tribunal questioned the appellant about the UNP, the elections referred to in his visa application, the nature and extent of the threats and injuries referred to in his visa application and his father’s political activity. The Tribunal informed the appellant that it had doubts about his claimed political profile, his claimed participation in Sri Lankan elections and his claim that he would face persecution in Sri Lanka if he returned. The Tribunal asked the appellant if he wished to make further submissions. The appellant informed the Tribunal that he would provide additional documents but did not do so.

15    The Tribunal found the appellant’s evidence to be “scant and lacking in detail”. The Tribunal also observed that there were “significant inaccuracies and inconsistencies, which significantly detract[ed] from the plausibility of the [appellant’s] claims and his overall credibility.” The Tribunal noted that the appellant was unable to recall correctly when the relevant elections took place in Sri Lanka. The Tribunal also pointed to inconsistencies between the appellant’s claims and the country information.

16    Accordingly, the Tribunal did not accept that the appellant was involved in campaigning for the UNP during the election periods. The Tribunal noted the letter from a Former Member of Southern Provincial Council, stating that the appellant had served actively at the youth front of the UNP but gave it little weight because the Tribunal did not accept that the appellant was actively involved in political activities as he claimed.

17    The Tribunal accepted that election-related violence between supporters of opposing political parties occurred in Sri Lanka but did not accept that the incidents asserted by the appellant had occurred.

18    The Tribunal did not accept that the appellant, his father or their property were targeted for harm during the course of election related periods.

19    The Tribunal also did not accept that the appellant or his family continued to receive threats or that when the appellant returned to Sri Lanka in 2008 that people came looking for him.

20    The Tribunal gave weight to the appellant’s delay of over three years between his arrival in Australia as a student and his application for a protection visa.

21    For those reasons, the Tribunal did not accept that the appellant had been persecuted in Sri Lanka in the past and did not accept that he faced a real chance of persecution in Sri Lanka for reason of his pro-UNP political opinion. The Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention (the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967) and therefore the appellant did not satisfy the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) .

22    The Tribunal also considered the complementary protection provisions under s 36(2)(aa) of the Act. The Tribunal did not accept that there were substantial grounds for believing that the appellant would suffer significant harm if he returned to Sri Lanka.

The Federal circuit court decision

23    By notice of appeal dated 20 September 2012, the appellant filed an application for judicial review of the Tribunal’s decision enumerating the following grounds of review:

1.    The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;

PARTICULARS

(a)    The tribunal states that Country information from 2007 do not identify any incidents of electoral violence between these two parties and refers to paragraph 58 of its decision,(to substantiate its decision) which in effect states that apart from two 1999 reports of violence between the PA and the UNP, there has been no incidents of violence between these two parties.

(b)    The major conclusion of the tribunal in relation to political violence between the PA and the UNP is based on incorrect information. The tribunal has failed to avail itself of numerous reports and country information/ amnesty international documents which detail numerous incidents of political violence from 2000 onwards, which the applicant bases his fear on.

(c)    However, then further on, it says that election monitors in Sri Lanka state that the conduct of parliamentary elections in 2010 was generally free from violence. Either it was free from violence or there were incidents of violence.

(d)    The tribunal has also placed too much weight on the fact that the applicant got certain dates wrong and therefore the tribunal has had a certain mindset that whatever else he has stated in support of his case must be tainted.

(e)    The tribunal has misinterpreted the criteria in s.36(2)(aa) and come to the incorrect conclusion.

24    Judge Hartnett dismissed the application on the grounds that it sought an impermissible review on the merits.

25    Judge Hartnett noted that it is well-established that the Tribunal is not required to make the appellant’s case or required uncritically to accept all or any of the appellant’s claims. Her Honour found that the Tribunal had “carefully considered” the applicant’s claims and the evidence before it and, on that basis, made a decision that was open to it. Her Honour noted that the particular country information relied upon and the weight attributed to it is a matter for the Tribunal.

26    Judge Hartnett inferred that the appellant claimed that the Tribunal’s decision was affected by bias, but rejected that allegation. His Honour noted that an allegation of actual bias must be “distinctly made and clearly provided” and that there was no evidence to support the appellant’s claim.

27    Judge Hartnett held that the Tribunal correctly identified the legal framework of the complementary protection regime, considered the appellant’s evidence and the country information and arrived at a conclusion on the basis of those considerations.

28    Her Honour also noted that credibility findings are “findings of fact and are a matter for the Tribunal par excellence”.

the appeal proceedings

29    The appellant appealed from the decision of the Federal Circuit Court to the Federal Court of Australia by notice of appeal dated 4 June 2013, on grounds very similar if not identical to those relied upon before the Federal Circuit Court as follows:

A.    The decision of the Tribunal/Court was made without jurisdiction or is affected by an error of jurisdiction;

PARTICULARS

(a)    The tribunal states that Country information from 2007 do not identify any incidents of electoral violence between these two parties and refers to paragraph 58 of its decision,(to substantiate its decision) which in effect states that apart from two 1999 reports of violence between the PA and UNP, there has been no incidents of violence between these two parties.

(b)    The major conclusion of the tribunal in relation to political violence between the PA and the UNP is based on incorrect information. The tribunal has failed to avail itself of numerous reports and country information/amnesty international documents which detail numerous incidents of political violence from 2000 onwards, which the applicant bases his fear on. The Court has erred when it states that the tribunal is entitled to give it what weight it deems fit, but if it fails to avail itself of such information, then it is not a question of weight.

(c)    However, then further on, it says that election monitors in Sri Lanka state that the conduct of parliamentary elections in 2010 was generally free from violence. Either it was free from violence or there were incidents of violence.

(d)    The tribunal has also placed too much weight on the fact that the applicant got certain dates wrong and therefore the tribunal has had a certain mindset that whatever else he has stated in support of his case must be tainted.

(e)    The tribunal has misinterpreted the criteria in s.36(2)(aa) and come to the incorrect conclusion.

30    In my opinion, as the Federal Circuit Court correctly found, the alleged errors were not established.

Grounds 1(a) to (c)

31    The errors alleged in grounds 1(a) to (c) are not, in my opinion, established. In essence, the appellant denied the accuracy of country information on which the Tribunal relied and asserted that the Tribunal was obliged to discover and rely upon other unspecified but contrary information, and to interpret information differently.

32    As Judge Hartnett correctly held, the Tribunal had a discretion to select the information on which it relied. The Tribunal was not required to identify or rely on other, additional information to which it was not, in any event, specifically referred.

33    Further, while the appellant disputed the logic of an observation in the Tribunal’s reasons, as her Honour correctly held, the Tribunal was merely quoting, as it was entitled to do, country information including a report entitled Country Report Sri Lanka (May 2010) by The Economic Intelligence Unit. While contrary to the appellant’s submission, the quoted observation was not inherently illogical, its validity, persuasiveness and weight were, in any event, matters for the Tribunal, whose use of the material and related findings disclosed no error.

Ground 1(d)

34    The allegation in ground 1(d) is not established.

35    The appellant’s allegation of bias, expressed as an assertion that the Tribunal had a “certain mindset” that his submissions were necessarily “tainted” was correctly rejected by her Honour, who observed that the Tribunal was not required uncritically to accept the appellant’s allegations. Moreover, the weight to be attributed to any errors in the appellant’s account of events was a matter for the Tribunal. The Tribunal found that appellant’s evidence was “scant and lacking in detail” with “significant inaccuracies and inconsistencies” which detracted from its plausibility and overall credibility. The Tribunal cogently explained its factual and credibility findings. As the first respondent submitted:

31.    Just because a Tribunal has made adverse factual and credibility findings does not mean that the decision was made in bad faith or that the Tribunal was biased. The application relies on the ground that there was bias, however it is submitted that it has not been made out. As noted by Kenny J in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 at [25], the test for apprehended bias is a high threshold and is well settled: SZHMJ v Minister for Immigration [and Citizenship and Another] [2007] FCA 102 at [15] per Cowdroy J.

32.    The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the question to be decided. This test is applied by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. A case for disqualification on the ground of a reasonable apprehension of bias must be ‘firmly established’ and a conclusion that there is apprehended bias is not ‘drawn lightly’. It is necessary to show that a fair-minded observer might reasonably apprehend that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she might not alter that conclusion irrespective of the evidence and arguments presented.

33.    Her Honour was correct in finding that the appellant's allegations fail to satisfy the test for actual bias or apprehended bias.

(footnotes omitted)

Ground 1(e)

36    The allegation in ground 1(e) is not established. The Tribunal did not misinterpret or misapply the complementary protection criterion.

37    As the Federal Circuit Court Judge observed, the Tribunal set out a detailed discussion of the complementary protection criterion in s 36(2)(aa) of the Act including the definition of “significant harm”. The Tribunal then found (on the basis of its consideration of the appellant’s claims individually and cumulatively) that given the circumstances the appellant might experience on return to Sri Lanka, there were no substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, he would suffer significant harm as defined in s 36(2A) of the Act.

conclusion

38    In my opinion, the Federal Circuit Court Judge did not err in rejecting the appellant’s allegations of error by the Tribunal. The appeal should be dismissed with costs.

Associate:

Dated:    9 August 2013