FEDERAL COURT OF AUSTRALIA

MZYYU v Minister for Immigration and Citizenship [2014] FCA 98

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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 Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) published as MZYYU v Minister for Immigration & Anor [2013] FMCA 33, in which the primary judge dismissed the appellant’s application for judicial review. The primary judge reviewed a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a Protection (Class XA) visa (“Protection Visa”).

2    The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 476 of the Migration Act 1958 (Cth) (“the Migration Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3     The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the primary judge is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

BACKGROUND

4    The appellant is a citizen of Sri Lanka who first arrived in Australia in 2007 as a holder of a student visa. In October 2010, the appellant and his wife lodged a claim for a Protection Visa on grounds that the appellant feared persecution in Sri Lanka as a result of his affiliation and involvement with an opposition political party, the UNP. The appellant’s wife did not claim to fear persecution and relied on her membership of the appellant’s family unit as the basis for her claim for protection.

5    Before the Tribunal, the appellant claimed that he and members of his family were actively involved in supporting the UNP between 2000 and 2007 and that they suffered serious threats and beatings as a result. Following his arrival in Australia in 2007, the appellant returned to Sri Lanka on two occasions and claimed that threats and monitoring by political opponents continued during those return visits. The appellant claimed that he fled Sri Lanka in 2010 in fear for his life and safety. Later that year, following the expiry of his student visa, the appellant applied for a Protection Visa.

6    The appellant’s claimed involvement with the UNP began in 2000 when he assisted in the campaign of his uncle who was the UNP candidate for mayor in the appellant’s home town. The campaign was successful and, in 2003, during his uncle’s term as mayor, the appellant claimed he joined the UNP and became more politically active.

7    During the 2004 parliamentary elections in Sri Lanka, the appellant claimed he worked for his uncle who was the divisional organiser for the UNP, canvassing for the UNP and attending political meetings. The appellant claimed his father also assisted in his uncle’s political activities, donating money and vehicles for use in campaigning and printing campaign leaflets.

8    During the 2005 presidential election, the appellant claimed he was involved in canvassing and poster campaigns as well as distributing pamphlets. He also organised “pocket meetings” at his family home at which his uncle or other local politicians spoke. It was during this election campaign that the appellant claimed he first suffered adverse consequences as a result of his political activities. The appellant claimed he received telephone threats from political opponents including threats against his life and was beaten on two occasions while putting up campaign posters.

9    In 2006 the appellant commenced university studies and claimed that he headed the UNP student organisation at his university. He also claimed that he was a leader in a UNP youth organisation. As a result of these roles, the appellant claimed he received telephone death threats in 2006 and 2007 and was beaten by an armed gang in May 2007.

10    The appellant claimed that following this beating, he fled to Australia in fear for his safety and made arrangements to continue his studies in Australia. According to the appellant’s evidence before the Tribunal, he was no longer a UNP member and ceased to be politically active around this time.

11    Whilst living in Australia, the appellant twice returned to Sri Lanka. The first trip was in January 2009 for the purpose of getting married. Before the Tribunal the appellant claimed that during this trip, threats were made against him and political opponents came to his parents’ house, apparently to threaten him.

12    In 2010, the appellant returned to Sri Lanka for a period of 10 days to visit his mother who was unwell. The appellant gave evidence before the Tribunal that he intended to stay in Sri Lanka for several weeks but was forced to flee to Australia unexpectedly due to fears following threats and surveillance by political opponents. The appellant claimed that people bashed on the windows at his parents’ house and that people came looking for him at his wife’s family home and beat his brother-in-law. The appellant also claimed that when his brother-in-law came to the airport to see off the appellant and his wife, the car in which his brother-in law was travelling was stopped at a checkpoint and its windows were smashed. The appellant claimed that his brother-in-law recognised one of the men at the checkpoint as a person who had beaten the brother-in-law days earlier.

THE TRIBUNAL’S REASONS

13    The Tribunal rejected the appellant’s claim for a Protection Visa based on the unfavourable view it formed of the appellant’s credibility and its almost wholesale rejection of the appellant’s evidence. The Tribunal concluded that on the evidence it was prepared to accept, the appellant had not been harmed in the past due to his political activities and did not have any real or imputed anti-government or UNP profile (at [102]). The Tribunal also concluded that the appellant did not face any threat of persecution based on his membership of a family group which is publicly aligned with the UNP (at [103]). Accordingly, it held that the appellant did not have a well-founded fear of persecution and did not satisfy the criteria for the grant of a Protection Visa, including the complementary protection criteria.

14    The Tribunal accepted that the appellant’s uncle had been mayor and that the appellant had been involved in his uncle’s mayoral election campaign in 2000. It also accepted the appellant may have been a past UNP member. But it did not accept the appellant’s claims that he was actively involved in canvassing or poster campaigns during the 2005 presidential election or that he was threatened and beaten as a result (at [82] and [88]-[89]).

15    Following on from its rejection of the appellant’s evidence of his 2005 campaign involvement, the Tribunal rejected the appellant’s evidence that he had been a UNP university organiser or had organised youth community activities in 2006-2007 or that any beatings or threats occurred as a result (at [90]). The Tribunal accepted the appellant’s evidence that he had not been a UNP member and had not been engaged in any political activities since leaving Sri Lanka in 2007.

16    The Tribunal then considered the appellant’s return visits to Sri Lanka in 2009 and 2010. Relying upon the appellant’s failure to specifically refer in his Protection Visa application to threats received during his 2009 trip, and given the Tribunal’s serious concerns about the appellant’s credibility based on its earlier findings, the Tribunal did not accept that any threats occurred during the 2009 return visit (at [97]). In relation to 2010, the Tribunal found the appellant’s account of the surveillance and threats that were said to have occurred during his return visit to be “extremely vague and extremely implausible” (at [99]). The Tribunal did not accept that the appellant was harmed or was the subject of any adverse attention in 2010 as a result of any political profile. This finding further compounded the Tribunal’s doubts about the overall credibility of the appellant (at [100]).

consideration

17    The appellant was not legally represented and the grounds referred to in the notice of appeal lack clarity. The notice of appeal raises one general ground - that the Tribunal’s decision was made without jurisdiction or is affected by an error of jurisdiction. However, five paragraphs of particulars follow which raise various grounds. Whilst wrongly categorised as “particulars”, I consider that the grounds raised in each of the five paragraphs sufficiently identify themselves as the appellant’s grounds of challenge. The grounds raised can be grouped by reference to the paragraph in the notice of appeal in which they appear.

Paragraph (a): bias

18    The grounds at paragraph (a) identify a number of matters that are said to demonstrate the Tribunal’s bias and assert that the primary judge erred by failing to identify that bias. Bias is said to be demonstrated in the Tribunal’s expression of concern at the beginning of its reasons regarding the genuineness of the appellant’s application given its timing. It is also said to be demonstrated in the Tribunal’s failure to seek further information from the appellant’s uncle regarding the appellant’s political activities, its failure to give the appellant an opportunity to address the Tribunal’s concerns about a letter supplied by the uncle and the Tribunal’s finding that the appellant deliberately concealed his return visit to Sri Lanka in 2009.

19    An administrative tribunal will be found to have conducted itself in a manner that displays apprehended bias where a hypothetical fair-minded lay person, properly informed as to the nature of the proceeding or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision: Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982 at [27]-[31] (Gleeson CJ, Gaudron and Gummow  JJ); Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [37] (Rares and Jagot JJ); and see also SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2] (Allsop CJ). Establishing actual bias on the part of the Tribunal requires cogent evidence that the decision maker was in fact biased. No such evidence was advanced before the primary judge which could possibly support that proposition.

20    As for apprehended bias, the appellant argued that the Tribunal formed a “certain mindset” before assessing the appellant’s claim, by considering evidence of the timing and circumstances of the appellant’s Protection Visa application before considering the substance of his claims. After referring to evidence that the appellant had not completed a course of study during the almost four year period that he had held a student visa and had applied for a Protection Visa around 7 weeks after his student visa expired, the Tribunal stated at [71]:

These collective circumstances lead me to question whether the [appellant’s] claims are genuine. However, if the claims are established through credible evidence and arguments, this would alleviate my concerns. I have therefore had careful regard to the evidence before me.

21    The appellant argued that the Tribunal ought to have considered his claims and reached a conclusion based on the evidence, rather than “prejudging” the evidence.

22    The appellant’s characterisation of the process engaged in by the Tribunal is not borne out by the Tribunal’s reasons. It was open to the Tribunal to take into account the timing and circumstances of the appellant’s application and the decision of the Tribunal does not suggest that it prejudged the appellant’s claim. The primary judge regarded the Tribunal’s expression of concern as entirely natural and reasonable and not suggestive of apprehended bias. I discern is no error in the primary judge’s rejection of this ground.

23    There were other matters that were said to be demonstrative of bias which paragraph (a) of the notice of appeal raises but which were not raised before the primary judge. If these matters had been properly raised I nevertheless would have dismissed them. The Tribunal weighed the question of whether to seek further information from the appellant’s uncle and its decision not to do so was based on its view that it would not be assisted by any attempts to contact the appellant’s uncle (at [85]). The Tribunal’s concerns about the content of the uncle’s letter were put to the appellant (at [39] and [85]), who was given an opportunity to respond and the Tribunal took into account the appellant’s responses in making findings in respect of the letter. Whilst some of the Tribunal’s reasoning is questionable, the circumstances are not demonstrative of any bias.

24    In relation to the appellant’s 2009 return visit to Sri Lanka, the Tribunal expressed “concern” that the appellant “deliberately concealed the visit” (at [97]). The appellant contends that this demonstrates bias because he specifically referred in his Protection Visa application to having been married in Sri Lanka in 2009. Whilst there may not have been any deliberate concealment of the trip, there was some basis for the Tribunal’s concern. The appellant had not referred to his 2009 return to Sri Lanka in responding to a question in the Protection Visa application form about whether he had returned to Sri Lanka since arriving in Australia and no mention was made of the trip, in which the appellant claims he was threatened, in his account of his circumstances given to the Department.

25    None of the matters asserted by the appellant in paragraph (a) raise any reasonable apprehension of bias.

26    Whilst not referred to in the notice of appeal, the appellant’s submissions appear to raise further claims of jurisdictional error in relation to the matters referred to in paragraph  (a). The appellant submitted that the Tribunal breached a duty to make enquiries in deciding not to contact the appellant’s uncle, and failed to afford the appellant a further opportunity to make submissions regarding the uncle’s letter, including in relation to the minimal evidentiary weight given to the letter.

27    If those additional grounds of review had been properly raised, I would have dismissed them. The Tribunal explained at [85] that it did not seek further information from the appellant’s uncle because it considered that the appellant’s own evidence of his stated experiences was not credible and that this could not be redressed by evidence from a third party. This approach was open to the Tribunal: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [12] (Gleeson CJ) and [49] (McHugh and Gummow JJ). The appellant has not established that by contacting the uncle the Tribunal may have been able to easily ascertain a critical fact which could have impacted on the outcome of the case such as might constitute jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); and see SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30]-[31] (Bennett J) and the cases there referred to.

28    The Tribunal gave the appellant an opportunity to respond to its concerns regarding the uncle’s letter (at [39] and [85]) and informed the appellant that it was open to him to provide further evidence to address the Tribunal’s concerns at any time prior to its decision being reached (at [64]).

29    The appellant’s contention that he should have been given an opportunity to address the minimal weight the Tribunal gave to his uncle’s letter is misconceived. The Tribunal is not under any obligation to disclose its preliminary views as to the weight to be given to particular evidence or to afford the appellant an opportunity for comment on such considerations.

30    Accordingly, all of the challenges raised under paragraph (a) must be dismissed.

Paragraph (b): irrelevant considerations

31    Paragraph (b) asserts that the Tribunal erred when considering whether the appellant faced a substantial risk of persecution because of his membership of a social group, being his family, by concluding that because the appellant’s uncle and father had not been harmed it was unlikely the appellant would be harmed. The test applied by the Tribunal was whether there was a real chance that the appellant will face persecution in Sri Lanka by reason of his membership of a family group that is publicly aligned with the UNP (at [103]). The evidence of past harm suffered by the appellant’s uncle and father (or absence of it) were matters the Tribunal took into account in applying the test. The Tribunal was entitled to take those matters into account. Those matters had a rational connection to the question of whether the appellant would face any harm in the future should he be returned to Sri Lanka. The primary judge did not err in dismissing this ground.

Paragraphs (c) and (d): credibility findings

32    By paragraph (c) the appellant contends that the Tribunal erred by finding at [89] that the threats claimed by the appellant were unlikely to have occurred because the appellant was not at all seriously harmed and it was implausible that if the appellant’s political opponents intended to harm him that they would not have had the opportunity to do so.

33    By paragraph (d) the appellant contends that the Tribunal erred by failing to accept that the appellant held the role of UNP university organiser and was also a UNP supporter and that there was a real chance of persecution should the appellant be returned to Sri Lanka.

34    Central to the impugned findings made by the Tribunal was the approach taken by the Tribunal to factual allegations made by the appellant which led the Tribunal to find that the appellant was not credible.

35    The primary judge seems to have dealt with the challenge raised by the appellant to the adverse credibility findings made by the Tribunal on the basis that the appellant had merely raised errors of fact-finding by the Tribunal which were not capable of constituting jurisdictional error (see [51] and [55] of the primary judge’s reasons). Insofar as those conclusions suggest that factual findings which led to a credibility finding could never be capable of constituting jurisdictional error, I would respectfully disagree.

36    The Tribunal is only empowered to make a determination regarding the relevant state of satisfaction under s 65 of the Migration Act where that determination is based on findings or inferences of fact that are grounded on probative material and logical grounds: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [40] (Kenny J); and see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [37]-[42] (Gummow ACJ and Kiefel J) and [102]-[105], [130] (Crennan and Bell JJ). I respectfully agree with the observations of Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [78] that it is not the case “that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for the tribunal’s rejection of the entirety of the applicant’s evidence and the entirety of the applicant’s claim”.

37    At the hearing, I raised a concern as to whether the credibility findings made by the Tribunal based upon the appellant’s evidence of events in 2005 and 2006-2007 were illogical or irrational. Having raised my concern at the hearing, I granted leave to the parties to file further written submissions addressing the issue.

38    The Tribunal rejected the appellant’s claim that he was involved in the 2005 presidential election campaign based on the adverse view it formed of the appellant’s answers to questions about the “pocket meetings” he said he organised during that campaign. When asked about the “pocket meetings” and the political platforms discussed at them, the Tribunal considered that the appellant’s answers were “extremely general and vague” and “starkly mismatched to his claimed political involvement as a committed UNP member” (at [82]). The Tribunal’s conclusion in this respect appears to me to be without a rational foundation.

39    The Tribunal’s description of the questions put to the appellant regarding the “pocket meetings” (at [51]) show that the appellant’s “general and vague” answers were given in response to very general questions. There is no suggestion that the Tribunal put to the appellant questions seeking detailed answers, that it raised concerns with the appellant about the generality of his answers or that it sought further details. The transcript of the hearing before the Tribunal confirms my view that the Tribunal was wrong to impugn the appellant’s credibility on the basis that his account of what occurred at political meetings during the 2005 campaign was too general or vague or was “mismatched” to his claimed political involvement.

40    The Tribunal went on to consider whether the appellant was threatened during the 2005 campaign. The Tribunal stated at [89]:

I find it implausible that, if political opponents intended to actually harm the [appellant], and he was running large UNP meetings from his home with UNP speakers, and given his association with [his uncle, the mayor], they would not have had the opportunity to do so. That the [appellant] was not at all seriously harmed in these circumstances; that he was not affected much; and that he continued his activities, seems significantly mismatched to the gravity of the threats and leads me to significant doubt that the threats occurred. I am not willing to accept – and do not accept – that these threats occurred.

41    The inference drawn by the Tribunal in the extract above is questionable. It does not necessarily follow from the fact that a threat was not acted upon that the threat was never made. It is not “implausible” that threats made were not carried out even if the opportunity to do so was available. Threats are often made to intimidate but without any resolve to effectuate the harm which has been threatened. The fact that a threat is not acted upon, without more, cannot reasonably be the basis for inferring that a threat was never made.

42    The Tribunal’s consideration of the appellant’s evidence of events in 2006-2007 followed its consideration of the 2005 events just referred to and appears to have been heavily influenced by them. The Tribunal’s consideration of the 2006-2007 events is set out in the following paragraph (at [90]):

In 2006, the [appellant] said he headed the UNP student organisation at his university, and as a result, received telephone death threats during 2006 and 2007 and was beaten by suspected opposition thugs in May 2007. Having not accepted core elements of the applicant’s account of his 2005 campaign role for detailed reasons, cited elsewhere above, I am not willing to accept uncritically – and do not accept – that he held the role of UNP university organiser, or that the beating or threats occurred at the times claimed, or that he was involved in UNP youth community activities during the period.

43    The Minister contended that the Tribunal rejected the appellant’s evidence of events in 2006-2007 on the basis that it had formed an adverse assessment of the appellant’s credibility. That assessment, according to the Minister, was partly based upon its rejection of the appellant’s 2005 evidence but was also influenced by its rejection of other elements of the appellant’s story. However, the Tribunal’s expression of its findings in relation to the 2006-2007 evidence set out above, suggests that the rejection of this evidence was based only upon its rejection of the appellant’s evidence as to his “2005 campaign role”.

44    If the Tribunal’s rejection of the appellant’s credibility and in turn his claim for protection were based only on the findings outlined above, I may have formed the view that the Tribunal’s decision was affected by jurisdictional error.

45    However, I accept the Minister’s submission that the Tribunal made other findings in support of its assessment of the appellant’s credibility and that those findings were capable of providing probative material to support the Tribunal’s ultimate conclusions.

46    In rejecting the appellant’s evidence that he was threatened in 2005, the Tribunal placed some reliance on the discrepancy between the claimed gravity of the threats and the appellant’s reaction. The Tribunal also appears to have disbelieved the appellant because he was not able to describe the timing of the threats even generally in relation to the election campaign (at [89]).

47    The Tribunal completely rejected the appellant’s evidence that he was threatened during a return visit to Sri Lanka in 2009. When questioned about the omission of a description of his 2009 return from his Protection Visa application, the appellant stated he did not realise the trip was important to his claims. The Tribunal found that this answer could not logically be reconciled with the appellant’s claims that he suffered threats from political opponents during this trip and concluded that the appellant fabricated his claim to have been threatened in 2009.

48    The Tribunal also found the appellant fabricated his claims that he and his family were harmed during the appellant’s return to Sri Lanka in 2010. After having not been politically active for some three years, the Tribunal considered claims the appellant was threatened and followed to his wife’s home town where unknown assailants beat his brother-in-law, were “extremely vague and extremely implausible” (at [99]). It also found the appellant’s evidence that days later and some four to five hours drive away, the same assailants visually recognised the appellant’s brother-in-law and smashed the brother-in-law’s car windows, “implausible and incredible” (at [100]).

49    These adverse findings were open to the Tribunal and were open to be deployed by the Tribunal as a basis for disbelieving the appellant’s claims separately from the Tribunal’s other findings which I have criticised.

50    Although the Tribunal wrongly impugned the appellant’s credibility on the basis of his description of the “pocket meetings” and the fact that threats made against him in 2005 were not carried out and wrongly rejected the appellant’s 2006-2007 evidence, those errors were not jurisdictional. For the reasons I have explained, it was open to the Tribunal to find, on the basis of other probative evidence, that the appellant’s allegations lacked credibility and that consequently he did not have a well-founded fear of persecution should he be returned to Sri Lanka. Once adverse credibility findings based on probative evidence were made, it could not be said that the conclusion reached by the Tribunal was illogical, irrational or lacked a basis in findings or inferences of fact supported on logical grounds: SZMDS; and Applicant S20/2002.

51    In light of those conclusions, paragraphs (c) and (d) must also be dismissed.

Paragraph (e): Failure to assess complementary protection criteria

52    Paragraph (e) asserts that the Tribunal did not properly address the complementary protection criteria for the grant of a Protection Visa. The basis upon which the appellant contends the Tribunal erred was not specified in his submissions or at the hearing. At [111]-[118] of its reasons, the Tribunal set out the legal principles applicable to assessing the complementary protection criteria. The Tribunal concluded the appellant did not satisfy the criteria. I do not discern any error in the primary judge’s conclusion that the Tribunal properly addressed the complementary protection criteria. I would dismiss this ground.

CONCLUSION

53    In light of my findings it follows that I should make orders dismissing the appellant’s appeal and requiring the appellant to pay the Minister’s costs of the appeal.

Associate:

Dated:    19 February 2014