Applicants M236 v Minister for Immigration - [2004] FMCA 301

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APPLICANTS M236 v MINISTER FOR IMMIGRATION

[2004] FMCA 301

MIGRATION – Application for judicial review – Protection visa – no well-founded fear of persecution – no jurisdictional error – Migration Act 1958 (Cth) s.422 – reconstitution of Refugee Review Tribunal – unavailability of member – no second hearing – no prejudice – application dismissed.

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)

Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicants:

APPLICANTS M236/2002

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 349 of 2003

Delivered on:

12 May 2004

Delivered at:

Melbourne

Hearing Date:

28 April 2004

Judgment of:

Hartnett FM

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Mr Fairfield

Solicitors for the Respondent:

Blake Dawson Waldron

ORDER

The application is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $6,393.00.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001 the Court certifies that it was reasonable for the parties to employ an advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 349 of 2003

APPLICANTS M236/2002

Applicants

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

This application commenced in the High Court of Australia pursuant to section 75(v) of the Constitution. The applicant filed a draft order nisi on the 24 December 2002. The remittal to the Federal Court was made without granting the order nisi. The matter was transferred to this Court by order of Justice Marshall on 10 April 2003.
The applicant sought in the High Court a writ of prohibition and a writ of certiorari. The applicant then filed in this Court an amended application pursuant to Part 8 of the Migration Act 1958 (Cth) (the Act) and section 39B of the Judiciary Act 1903 (Cth). What remains before the Court is the remitted High Court application under s.75(v) and the amended application; in effect an amended draft order nisi. The parties were in agreement that the matter proceed by way of final hearing and accordingly the hearing conducted was the hearing of the order absolute and both parties argued the matter on the basis that the application was for final relief, in the form of prohibition and certiorari (Applicants S266/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 313).
There is no issue as to time limits in the proceedings. The decision of the Refugee Review Tribunal (RRT) was handed down on 6 December 2002 and the affidavit material of the applicant which has as one of its exhibits the draft order nisi was filed on 24 December 2002. Accordingly Order 55 of the High Court Rules is satisfied.
The applicants in the proceeding are a husband, wife and their 2 sons. They are citizens of Sri Lanka. They arrived in Australia on

20 December 1999 on subclass 676 Tourist visas valid for three months from the date of arrival. On 13 January 2000 they lodged an application a Protection visa. The husband alone made specific claims for a Protection visa. His wife and two children claimed Protection visas as members of his family unit.
On 6 March 2000 a delegate of the respondent refused to grant Protection visas and by application received 15 March 2000 the applicants sought review of that decision by the RRT. By a decision handed down of the 6 December 2002, the RRT affirmed the decision of the delegate. On 24 December 2002 the applicants applied for the earlier referred to orders nisi in the High Court. The amended application identifies the present respondent as the only respondent.
Prior to its decision being handed down the RRT provided for the applicants to attend a hearing on 5 April 2001 at which the applicant husband was represented by his legal adviser. After that hearing the RRT was reconstituted by a different RRT member.

Applicant’s claims

These are summarised (properly) by Mr Fairfield, Counsel for the respondent as follows:
Essentially, the applicant claimed that he had a well-founded fear of persecution because of his involvement with the United National Party (UNP) in Sri Lanka. He also claimed, in this context, that his family were well-known supporters of the UNP.
He claimed that his father had been a UNP supporter. However, the applicant claimed that he had joined the UNP in 1994 when he was 24 years old. He held no office in the UNP and his involvement was limited to providing assistance during the presidential election campaigns in 1994 and 1999.
He claimed his father had been killed in October 1989 in Badulla. The applicant claimed that he was not aware of the circumstances but speculated that it was the JVP who had killed his father.
The applicant also relied upon his own claims of past harm. He claimed to have been harassed, threatened and assaulted by the People’s Alliance (PA) supporters. He claimed that this had happened in 1994 after the presidential election in that year and five years later in 1999. He claimed that the harm experienced was linked to his political involvement in the respective presidential election campaigns on behalf of the UNP candidate. He claimed that he had experienced no difficulties in the intervening period when he was not politically involved although he claimed later in the course of the RRT hearing that the threatening phone calls he received in 1994 had continued afterwards. He also claimed later in the course of the RRT hearing that in the intervening period between 1994 and 1999 he was “doing things for the party during the five years”.
He claimed that on 1 November 1999 his house had been damaged by PA supporters who had looted the UNP campaign materials stored there. After this incident, the applicant started receiving threatening phone calls. He then left Sri Lanka unaccompanied on 20 November 1999. He claimed that his intention was to return to Sri Lanka immediately if the UNP won the election. However, he returned four days later which was also about one month before the 1999 election. He claimed that he then resumed campaigning for the UNP.
He claimed that his vehicle was damaged by PA supporters on 28 November 1999. He claimed that upon returning home after this incident, he also learned that three schools had refused his son’s application for enrolment. He believed the reason for this was political bias.
He claimed that on 15 December 1999 a note was attached to the applicant’s door threatening to kill him and his children if he continued his work for the UNP. The applicant claimed that it was only after this incident that he decided he could no longer stay in Sri Lanka. He departed Sri Lanka on 20 December 1999 with his family.
The applicant claimed that he had reported all of the above incidents to the police. He claimed that he reported the assaults in 1994 to the police but that the police had done nothing. He claimed that he reported the incident on 1 November 1999, during which UNP election material was stolen, but that the police had not taken a statement from him and had also threatened him that if he wanted to remain alive, he should not come back. Nevertheless, he later reported to the police the subsequent threats he claimed to have received. Again, he claimed the police did not take a statement and nothing “was done”. He also reported the incident on 28 November 1999 when his car was damaged. Again, he claimed the police had not taken a statement from him.
In the course of the hearing, the RRT member indicated that she had received material relating to the applicant. She summarised the material and indicated why it was relevant. She also indicated that the material would be provided to the applicant in writing and he would be invited to comment upon it.
The material included a letter from the applicant’s employer dated

2 November 1999 which suggested that the applicant had arranged his visit to Australia well in advance of the incident on 15 December 1999 which the applicant had claimed had been the reason for his departure from Sri Lanka.
The material also included material which suggested that the applicant was suspected of, and charged with, defrauding his employer of approximately 3.5 million Rupees and that therefore the motivation for this departure from Sri Lanka may not have been as he claimed.
The applicant subsequently responded in writing to these matters.
By letter dated 21 February 2002, the RRT informed the applicant that the RRT member previously deciding his case was no longer available and that the RRT had been reconstituted by another RRT member. The applicant was asked to provide the RRT with any new information. He was also given country information to comment upon regarding the recent UNP election win and the new cabinet of the UNP government. The applicant responded in writing on 8 March 2002.
The RRT also indicated, in its reasons for decision, that it had listened to a taped recording of the hearing before the RRT as previously constituted.

The RRT findings and reasons

These are, again as succinctly and accurately set out in Mr Fairfield’s contentions, as follows:
The RRT accepted that the applicant and his family were supporters of the UNP. However, it did not accept that his family were high profile supporters of the UNP, as the applicant had claimed. The RRT gave reasons and referred to the evidence. It noted that the applicant held no formal office in the party and he provided no details as to the level of involvement of other family members. It also found that if the applicant’s family was as active in politics as the applicant claimed, then it would have expected the applicant to have joined the UNP earlier than 1994.
The RRT accepted that the applicant’s father had been killed in October 1989 while visiting Badulla. The RRT accepted that he may have been killed by the JVP given that his death occurred at the time of the JVP insurrection “when hundreds were killed”. However, the RRT noted that the applicant never claimed to have been targeted by the JVP nor did he claim a fear of being persecuted by the JVP.
The RRT accepted that the applicant was an ordinary member of the UNP from 1994 and that he was involved in political activities during the presidential elections of 1994 and 1999. It found that during those election campaigns, he had been involved in pasting posters, organising meetings, and campaigning.
However, the RRT found that the applicant was only politically active around the time of the 1994 and 1999 presidential elections. It rejected his claim, made later at the RRT hearing, that he had been politically active during the intervening period. Apart from the tardiness of the claim, the RRT found it to be “vague and inconsistent with his earlier evidence to the Tribunal”. The RRT noted, in this context, that when asked how he was active in the intervening period, the applicant merely stated that he “was always doing things”.
Similarly, the RRT rejected the applicant’s claim, again made later at the hearing, that he had experienced difficulties, in the form of telephone threats, during the intervening period between 1994 and 1999. The RRT found his evidence about these matters to be “vague and general”. He gave no details as to the frequency of the calls or the nature of the threats. The RRT also found that this evidence was inconsistent with the applicant’s earlier evidence when he had confirmed that it was only during the two elections that he had experienced any problems.
As to the problems which the applicant had claimed to have experienced in 1994 and 1999, the RRT reasoned as follows:-
a)the RRT had difficulty accepting that the applicant was targeted after the 1994 election because of his active campaigning and not before when his activities “would have been of more concern to his political rivals”. However, it was prepared to accept that the applicant may have received some threatening phone calls and harassment at that time; and
b)it found as a fact, however, that the harassment experienced did not constitute persecution for the purposes of the Convention.
The RRT rejected the applicant’s claim that he had been assaulted on several occasions after the 1994 election because of his involvement in that election campaign. The RRT gave reasons and referred to the evidence. The RRT reasoned as follows:
a)There was a lack of detail about the assaults. The RRT noted that the applicant provided no further detail “at any stage” in relation to the number of assaults, the nature of them, whether he knew the perpetrators, or the nature of the injuries sustained;
b)the applicant was only an ordinary member of the UNP; and
c)there was an inconsistency between the applicant’s claim of being targeted after the 1994 election because of his election involvement when he was not politically active after that time until 1999.
As to the applicant’s claimed difficulties in 1999, the RRT accepted that PA supporters may have looted UNP campaign material from the applicant’s home and that they may have smashed his windows and stoned his house. It also accepted that he may have received threatening phone calls after this incident on 1 November 1999 when his house was looted. However, it did not accept that this was harm of such seriousness as to constitute persecution for the purposes of the Convention. It also found, in this context, that the applicant did not have a genuine fear of persecution. If he had a genuine fear, the RRT reasoned, then he would not have left Sri Lanka at this time and returned only four days later, being one month before the 1999 election.
As to the applicant’s claim that after his return to Sri Lanka, his vehicle had been damaged by PA supporters on 28 November 1999, the RRT noted that the applicant provided no details as to where this occurred, the number of people involved, if he was present at the time, whether he knew the people or the extent of damage to his vehicle.
However, the RRT found that “even if it did happen”, there was nothing to suggest that it was related to the applicant’s political activities “given the vagueness of the details regarding the incident”. The RRT further reasoned that, in any event, it did not constitute persecution for the purposes of the Convention.
The RRT also considered the applicant’s claims that he had reported all of these incidents to the police, that they had refused to help him and that they had threatened him.
First, the RRT expressly rejected the applicant’s claim that he had reported assaults in 1994 to the police and that they had threatened him because, the RRT reasoned, it had previously rejected the applicant’s claim that such assaults had taken place.
Secondly, the RRT reasoned that given that it was UNP property which had been stolen from the applicant’s house on 1 November 1999, it did not accept that “no action at all would have been taken by the police”.
Thirdly, the RRT rejected the applicant’s claim that, despite his claim that he had reported incidents to the police they had refused to help him and that they had threatened him as he claimed, - that he would “continue with this avenue of redress” by reporting to the police the subsequent telephone threats received after 1 November 1999 and the damage to his vehicle on 28 November 1999.
The RRT also rejected the applicant’s claim that his son was rejected from three schools because of political bias. However, it reasoned that even if this were the case, it was not persecution for the purposes of the Convention given that the applicant had not claimed that his son was denied an education.
The RRT then dealt with the applicant’s claim that on 15 December 1999 a note from the PA had threatened him and his children with death if he did not cease his political involvement. It will be recalled that the applicant claimed that it was because of this incident that he had decided to depart Sri Lanka.
The RRT rejected this claim. It gave reasons and referred to the evidence. The RRT found first that the applicant would not have attracted “serious adverse attention from the PA as he claimed” given that he was only an ordinary member of the UNP who was not politically active except at election time. Secondly, the RRT reasoned the applicant’s profile was further reduced given that he had been out of the country for a short period of time and he was therefore “not as active in the campaign”. Thirdly, the letter from the applicant’s employer suggested that the applicant’s trip to Australia was planned well before this alleged incident took place and therefore suggested that the motivation for his departure was not because of this claim or his political activities generally.
The RRT considered the evidence “as a whole” and reasoned that the applicant did not have a well-founded fear of persecution upon his return because (a) the applicant had not been persecuted in the past; (b) the applicant’s profile was that of an ordinary supporter of the UNP; (c) the UNP is now in power in Sri Lanka; (d) there was no risk to the applicant given “the current political environment”; and (e) the police would not fail to protect the applicant from any harassment he may encounter if he were to become politically active.
In this context, the RRT expressly excluded the “fraud charges against the applicant” from its consideration of the applicant’s claims.

Consideration

The Act makes specific provision for the reconstitution of the RRT. The applicant submitted that as the Tribunal was reconstituted he was entitled to a further hearing which he was not afforded. I reject this submission. Section 422 of the Act clearly provides for the subsequent member constituting the Tribunal to – for the purpose of finishing the review –
Section 422(2):
…have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
The Tribunal member did have regard to the proceedings of the review as previously constituted. She read all of the material and listened to the hearing tape. The applicant was informed in writing on

21 February 2002 that the Tribunal had been reconstituted. He was asked to provide any further material and he did so. There was no prejudice or absence of fairness to the applicant. The Full Court of the Federal Court considered this matter in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362. The Court held that s.422 does not provide that the reconstituted Tribunal is required to invite the applicant to appear before it and (at paragraph 38):
On the contrary, what is provided in s 422 is suggestive against the right to a second invitation asserted by the appellants.
and later (at paragraph 41):
The fact that s 422 provides a power for the Tribunal to have regard to the record of the proceedings before the first Tribunal also tells against the right contended for by the appellants.
The Full Court determined that the reconstitution of the Tribunal did not require the applicant to be given another opportunity to give evidence.
The applicant submits that the decision of the RRT was “affected by unconscious but significant bias on the part of the Tribunal member”. It is also submitted that the RRT “took a prejudged attitude”. There are no particulars.
The RRT decision sets out the Tribunal’s reasons for the making of that decision which on the material before the Tribunal was clearly open to it. The applicant makes an allegation of actual bias against the decision maker which is a serious allegation to make and one which I find lacks any substance. There is nothing in the reasoning by the RRT which indicates any prejudgment of the matter by the RRT. Although the RRT was clearly mindful of the need for caution before making adverse findings as to credit – and referred to various authorities on point – it nevertheless did not accept some of the applicant’s claims. This is entirely a matter for the RRT. These are factual findings and findings on credibility which are the function of the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at 67).

As to the submission made by the applicant that the RRT failed to put to the applicant any perceived deficiency in his material, I reject this submission. The applicant, both before and after the reconstitution of the Tribunal, was given an opportunity to provide any further material he sought to rely upon. At the oral hearing, the applicant’s claims were canvassed by the RRT. The Tribunal member put to the applicant matters of concern to the Tribunal including, as submitted by Counsel for the respondent, his family’s profile with the UNP; the short duration of the applicant’s four day trip to Singapore and Thailand prior to the 1999 election; the implausibility of the claim that the applicant would continue to report matters to the police given his claims in that respect, and the apparent inconsistency between the contents of the letter from the applicant’s employer and the applicant’s claim that it was the incident on 15 December 1999 that had caused him to leave Sri Lanka. In any event, it is not for the Tribunal to make out the applicant’s case.
The Tribunal properly considered the applicant’s claims and made material findings of fact based on the evidence before it. The RRT found that the applicant did not face a real chance of persecution for the reasons elaborated in paragraph 40 herein. The applicant’s claim of actual bias is without merit and no jurisdictional error of any kind has been committed by the Tribunal. I shall dismiss the application.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: Sophie Killen

Date: 12 May 2004