FEDERAL CIRCUIT COURT OF AUSTRALIA
MZZSD v MINISTER FOR IMMIGRATION & ANOR	[2014] FCCA 3016	

Catchwords: 
MIGRATION – Applicant failed to appear – medical certificate did not address essential issue of capacity to attend Court – grounds for review considered – no discernable error by the Refugee Review Tribunal – application dismissed.	

Legislation:
Migration Act 1958 (Cth), s.424A(3)(a)	

MZYZE v Minister for Immigration and Citizenship (2013) 136 ALD 395
NABE v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 144 FCR 1
NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559
Singh v the Minister for Immigration and Border Protection [2014] FCA 538
SZROQ v the Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 833	

Applicant:	MZZSD	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Refugee Review Tribunal	

File Number:	MLG 1453 of 2013	

Judgment of:	Judge Whelan	

Hearing date:	18 December 2014	

Date of Last Submission:	18 December 2014	

Delivered at:	Melbourne	

Delivered on:	18 December 2014	

REPRESENTATION
No appearance by the Applicant		

Counsel for the Respondents:	Mr T Smyth	

Solicitors for the Respondents:	Australian Government Solicitors	

ORDERS
(1)	The Application filed 6 September 2013 be dismissed.
(2)	The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne	
MLG 1453 of 2013
MZZSD	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent

Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
(As revised from Transcript)
The failure by the Applicant to appear
1.	I will deal firstly with the question of what I am prepared to consider, although it is not formally put as such, as an application by the Applicant that this matter should be adjourned because of his inability to attend. It is worthwhile examining the history to look at the context in which this matter was raised with the Court today.
2.	The application was lodged on 6 September 2013. On 
6 November 2013 it was set down for hearing on 7 April 2014. 
On 24 March 2014, that date was vacated and the Applicant was notified that the matter would listed at a later date. On 20 August 2014, the matter was set down for hearing on 12 December 2014. 
On 28 November 2014, the Applicant lodged a Notice of Discontinuance with the Court.
3.	When the matter came before the Court on 12 December 2014, 
the Applicant sought, and was granted, leave to withdraw that 
Notice of Discontinuance and the matter was then set down for 
hearing at 2.15 p.m. on 18 December 2014. On the morning of 
18 December 2014, it would appear that the Applicant visited a doctor at Sunshine Plaza and obtained from that doctor a certificate that states “for the period 18/12/2014 to 19/12/2014 inclusive [the Applicant] will be unfit to continue his usual occupation” (“the medical certificate”). 
I am not entirely sure of what the Applicant’s usual occupation is, but that is inadequate, in my view, for the purposes of the Court.
4.	The medical certificate was accompanied by a letter that simply states that the Applicant is unable to attend the Court due to illness: 
“please find my medical certificate attached with this letter. My high apologies for not being able to attend to the court”. The question of the adequacy of medical certificates provided to the Court with respect to parties seeking an adjournment or failing to appear on the listed date has been dealt with in a number of judgments of this Court, and also judgments of the Federal Court.  
5.	The First Respondent referred to the judgment in MZYZE v Minister for Immigration and Citizenship (2013) 136 ALD 395, a decision of Judge Riethmuller, and also to the judgment in the matter of NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 (“NAKX”), a judgment of Lindgren J of the Federal Court. Also provided to the Court this afternoon is the judgment of Justice Pagone in Singh v the Minister for Immigration and Border Protection [2014] FCA 538, a recent judgment in the Federal Court, which, essentially, has followed the same reasoning as Lindgren J in NAKX.
6.	The issue that is pointed out in all of those cases is that the 
medical certificate, as provided, says nothing about the Applicant’s capacity to attend Court. People may obviously be unable to carry out their usual occupation because of an illness, but that may not necessarily impact on their capacity to attend Court, or to perform other functions. It does appear that the Applicant was able to attend a medical practitioner, and it also appears that he was either able, or able to get somebody else, to bring documents to this Court at about 
11.00 a.m. this morning. They were received in my Chambers shortly thereafter. I am not satisfied that the medical certificate that has been provided is adequate to excuse the attendance of the Applicant. 
7.	Given the length of time this matter has been in the system, I think it is appropriate that I deal with the merits of the application today and, 
to that purpose, I have read the written submissions that have been provided by the First Respondent, and I have also heard the submissions that Counsel for the First Respondent has made today. 
The substantive application
8.	This is an application for review of a decision by the 
Refugee Review Tribunal (“the Tribunal”), which affirmed the decision by a delegate of the Minister not to grant the Applicant a protection visa. 
9.	The Applicant is a Sri Lankan national who arrived at Christmas Island by boat on 17 May 2012. Shortly thereafter, the Applicant applied for a protection visa and, on 5 November 2012, he was notified that a delegate of the Minister had refused that visa.
10.	On 10 December 2012, the Applicant applied to the Tribunal for a review of the delegate’s decision. He appeared before the Tribunal on 8 March 2013 where he produced supporting documents, and there were further submissions made on his behalf following that hearing on 18 March 2013 and 8 May 2013.  
11.	Essentially, the Applicant claimed protection before the Tribunal because:
•	He was a Tamil; 
•	He was being imputed with a political opinion supportive of the Liberation Tigers of Tamil Eelam (“LTTE”); and
•	Being a failed asylum seeker or returnee from Australia, or a person who departed Sri Lanka illegally, he would be subject to persecution. 
12.	The Applicant outlined the factual claims that he advanced in a statutory declaration that he made on 4 August 2012. He made particular claims that he had been: 
•	Abducted from his home by the Criminal Investigation Department (“CID”) in September 2011; 
•	Held by the CID and beaten; and 
•	Extorted for money and that, as a result of this, he had had to go into hiding.  
Other than that incident, the Applicant “claimed to have minded his own business and led his life without any problems”.
13.	The Applicant further stated that he was: 
•	From a Tamil village which he claimed the authorities would suspect was involved with the LTTE; and 
•	Frequently stopped by authorities and questioned.
The Applicant also later stated that: 
•	His father and his wife were also tortured by the CID;
•	There were threats to kill him; and 
•	He would be killed or tortured if he returned to Sri Lanka.
14.	The Tribunal rejected the Applicant’s claims about the incident in September 2011 because it found that the factual assertions he advanced were “unconvincing, inconsistent, objectively unlikely or otherwise implausible”. It is not necessary to go into all of the reasons why the Tribunal found that; these reasons are contained in the decision of the Tribunal between paragraphs 32 and 40 of that decision.
15.	Having made the conclusions from the material that the evidence of the Applicant was unconvincing and implausible, the Tribunal therefore found that the Applicant had not: 
	[C]ome to the attention of the Sri Lankan authorities on the basis of his Tamil ethnicity, nor had he ever been suspected of being a LTTE member or supporter, or been the subject of extortion.  
The Tribunal further found that, even if the Applicant had been subject to questioning, the Tribunal did not accept that this had resulted in any harm to him, and that the Applicant did not: 
•	“[F]ace a real chance of being a victim of criminal activity from unidentified paramilitary groups”; 
•	“[F]all into any of the categories the United Nations High Commissioner for Refugees … has identified as being at risk”; and 
•	“[F]ace a real chance of serious harm as a consequence of his being a returnee, or a failed asylum seeker who had departed 
Sri Lanka illegally”.
The grounds for review
16.	The application sets out the grounds for review as follows:
	1.	The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;
The decision of the Tribunal failed to accord the applicant procedural fairness.
The particulars of the grounds are as follows:
	a.	 The Tribunal did not put to the applicant for comment adverse “country information” regarding the improved situation for Tamils in Sri Lanka.
	b.	 The Tribunal failed to deal with an integer of the claim, as to whether or not there was a well founded fear of persecution based on the applicant’s membership of an alleged particular social group, namely young Tamil males from the north of 
Sri Lanka. In particular, whilst the tribunal has considered the heightened risk profile arising from being a Tamil from the north, both the applicant’s age, gender and fact he was a boat person did not receive consideration in the context of his being a member of a particular social group.
	c.	 The Tribunal has failed to provide to the applicant for his consideration and comment those aspects of country information which related to pro Government (non state) paramilitary groups. The applicant would be at a heightened risk, given he would be a returned asylum seeker and it could be imputed that he was returning with cash. It is irrelevant that the applicant made no claims as to have been targeted by parliamentary groups in the past, as it was submitted by the applicant’s adviser as an important factor to be taken into account by the tribunal. 
	d.	 The Tribunal did not put to the applicant for comment all adverse “country information” regarding the situation for failed asylum seeker/returnee Tamils in Sri Lanka. 
The First Respondent’s submissions
17.	In written and oral submissions, the First Respondent addressed the grounds as set out in the application. 
18.	The First Respondent has taken the Court to the provisions of s.424A(3)(a) of the Migration Act 1958 (Cth) (“the Act”) and, in particular, with respect to the issue of a failure of the Tribunal to put certain country information to the Applicant, the First Respondent submits that that information squarely falls within the provisions of s.424A(3)(a) of the Act in that it was information that was not specifically about the Applicant or another person, and was just about a class of persons of which the Applicant or the other person was a member.
19.	Further, the First Respondent drew the Court’s attention to the judgment of Farrell J in SZROQ v the Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCA 833 where, 
even though it was not obliged to, the Tribunal had taken the applicant to the specific information, and again, the Tribunal did that in this case.
20.	With respect to the consideration of the risk from non‑state paramilitary groups, the First Respondent submits that, if the Applicant contends that he would be at risk from these groups as a returned asylum seeker, the Tribunal had dealt with that point when it dealt with the issue of any risk associated with being a returned asylum seeker. Further, the issue about the fact that the Applicant might be thought to be carrying cash was a matter that was never raised before the Tribunal and, as such, the Tribunal was not required to deal with it as it was only required to deal with the case that was actually put before it.
21.	In relation to the question of whether the Tribunal had failed to consider a particular integer of the claim, that is that the Applicant was a member of the social group, being young Tamil males from the north of Sri Lanka, the First Respondent submits that: 
•	First, that was never specifically raised by the Applicant; and 
•	Second, it could be subsumed within the findings that the Tribunal made with respect to the situation of the particular 
social group comprising of Sri Lankan Tamils, or Tamils from the 
north or east of Sri Lanka.  
It was obvious that the Applicant was young and male and therefore, 
by implication, the Tribunal would have dealt with that in coming to that conclusion.
Conclusions
22.	In relation to particulars a, c and d of the application, the Applicant claims a failure on the part of the Tribunal to put to him for comment certain country information. The Tribunal refers to country information in paragraphs 42 – 44 and 49 – 50 of the decision. With respect to the references in paragraphs 43 and 44, those items of country information were specifically put to the Applicant in the hearing.
23.	To the extent that any country information relied upon by the Tribunal was not put to the Applicant, the First Respondent had dealt with this in submissions with respect to the operation of s.424A(3)(a) of the Act. I accept the Tribunal is not obliged to put to an applicant information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. It is clear that country information of the nature referred to by the Applicant in particulars a, c and d of his claims is not information specifically about the Applicant. It is the type of information which the Court has consistently regarded as being covered by the provisions of s.424A(3)(a) of the Act.
24.	With respect to particular b of the Applicant’s claims, this raises a claim that the Tribunal failed to deal with an integer of the claim because it failed to deal with the Applicant’s fear of persecution as a member of a particular social group, being young Tamil males from the north of Sri Lanka. This particular contends that the Tribunal failed to deal with the Applicant’s age, his gender and the fact that he was a boat person. The delegate of the Minister, in the decision record, referred to a submission made by the Applicant’s representative and the Applicant’s statutory declaration.
25.	The Applicant’s statutory declaration referred to him fearing persecution because, as a Tamil, he would be imputed with being a supporter of the LTTE. He also claimed to fear being detained and interrogated as a Sri Lankan who had fled his country illegally. 
The submission referred to the Applicant’s: 
•	Tamil race; 
•	Membership of the particular social group of Sri Lankan Tamils; 
•	Membership of the particular social group of Tamils from the north-east of Sri Lanka;
•	Real and imputed political opinion arising from his race and former residence in the predominantly Tamil region; and
•	Claims for asylum in Australia. 
Those claims are reflected in the submission dated 22 August 2012 from the Applicant’s representative under the heading ‘Seeking asylum in a western country’, and that submission goes on to say:
	Since 2008, when boatloads of Tamil asylum-seeker [sic] commenced arriving in Australia and Canada, the Sri Lankan authorities have consistently alleged that asylum-seekers are LTTE members or sympathisers whose aim is to keep the cause of the LTTE going overseas.
It then refers to various pieces of country information with respect to that submission.
26.	This submission was further relied upon by the Applicant with the addition of some further information in the proceedings before the Tribunal. These submissions make no claim that the Applicant feared persecution specifically as a young male but only as a: 
•	Tamil; 
•	Member of the Tamil race; and 
•	Member of two particular social groups, being Sri Lankan Tamils and Tamils from the north or east of Sri Lanka.
27.	At paragraph 43 of its decision, the Tribunal dealt with the claims concerning the Applicant’s ethnicity, his imputed political opinion and the particular social groups of which he claimed to be a member. I am satisfied that in doing so, the Tribunal dealt with the claims presented or which could reasonably inferred from those claims. No particular claim was made on the basis that the Applicant was a boat person. 
To the extent that that claim was covered by the claim to fear persecution as a failed asylum seeker, that issue was covered by the Tribunal in paragraph 44 of its decision.
28.	With respect to particular c of the Applicant’s claims, the Applicant raises two issues apart from the alleged failure to put to the Applicant country information about pro-government paramilitary groups. 
The first of these raises the issue of the Applicant being a returned asylum seeker, a matter to which the Tribunal gave consideration in paragraph 44. The Applicant then suggests that, as such, it could be imputed that he was returning with cash. Not only was this not a matter before the Tribunal, but there is no explanation of why it would be imputed that, as a failed asylum seeker, the Applicant would be returning to Sri Lanka with cash. There is no error on the part of the Tribunal in failing to deal with an issue which was not put to it.
29.	It is then suggested that it is irrelevant that the Applicant made no claim to have been targeted by paramilitary groups in the past as it was submitted by the Applicant’s representative as an important factor to be taken into account. The issue is not one of the matters under the heading ‘Convention link’ in the written submissions on page 164 of the Court Book. In that submission it is put: 
	Despite some legislative amendments, Tamils continue to be the subject of wide-ranging, oppressive government actions directed at anyone suspected of supporting the LTTE, including civilians …
The submission goes on further to refer to ongoing suspicions harboured by the Sri Lankan authorities about resurgence of the LTTE and that:
	[T]here is also information from reputable sources that suggests Tamil men such as our client could be the victims of serious criminal activities directed at Tamils and perpetrated with impunity by paramilitary groups.
30.	They are the only parts that I could find where the issue was raised. The Tribunal dealt with those matters at paragraph 42 of the judgment where it stated:
	The Tribunal notes the applicant’s adviser’s reference in their submission to sources of information suggesting Tamil men such as the applicant could be victims of serious criminal activities perpetrated by paramilitary groups. The Tribunal notes the applicant does not appear to have made any claims to have been targeted by any paramilitary groups in the past or expressed a fear that he may be a victim of crime at the hands of these groups at any stage in the process despite being asked several times for the reasons he believes he may face harm on return to Sri Lanka. The Tribunal has taken into consideration the country information cited however it does not accept that the applicant faces a real chance of being a victim of such criminal activity from these unidentified paramilitary groups now or in the reasonably foreseeable future.
31.	There is nothing inappropriate about the way the Tribunal dealt with the issue. It notes the Applicant made no claim to being targeted by such groups in the past and expressed no fear that he might be a victim of crime at the hands of these groups. These are unexceptional matters to consider when a Tribunal addresses the question of whether an applicant might have a genuine fear of persecution or for whom there are substantial grounds for believing that there is a real risk that he or she would suffer significant harm if returned to their country of origin.
32.	Finally, the Tribunal referred to its considerations of the country information and concludes that the Applicant did not face a real chance of being the victim of such criminal activity. Clearly, it is a matter for the Tribunal what country information it considers to be relevant and the weight to which it gives such information.
33.	Having dealt with the grounds as raised in the application, I am satisfied that there was no discernible error on the part of the Tribunal in the way that it dealt with the application and that the grounds have not been substantiated. On that basis, the application should be dismissed with costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate:  

Date:  23 December 2014