M178 of 2004 v Minister for Immigration
[2006] FMCA 396
•23 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M178 of 2004 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 396 |
| MIGRATION – Protection visa – whether jurisdictional error. |
| NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 |
| Applicants: | APPLICANTS M178 OF 2004 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 648 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 27 February 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 23 March 2006 |
REPRESENTATION
| The Applicants: | In person |
| Counsel for the Respondents: | Mr. S. Hay |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicants shall pay the First Respondent’s costs fixed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 648 of 2005
| APPLICANTS M178 OF 2004 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicants are husband and wife and their children. They arrived in Australia on 27 September 2003. They are Sri Lankan citizens.
On 29 October 2003, the Applicants lodged an application for a protection visa with the First Respondent's Department. On
17 December 2003, the delegate of the First Respondent refused the application. The Applicants then lodged an application for review with the Refugee Review Tribunal (“the Tribunal”) on 15 January 2004. The Tribunal in a decision dated 18 August 2004 affirmed a decision of the delegate not to grant a protection visa.
The Applicants filed an application for an order nisi in the High Court of Australia in relation to the decision of the Tribunal on 2 September 2004. The High Court remitted that application to the Federal Court of Australia on 18 March 2005. The Federal Court transferred the application to this Court on 30 May 2005.
In seeking judicial review of the Tribunal decision, the Applicants seek to rely upon an amended application which appears to have been filed on 12 September 2005. Attached to that amended application appears to be contentions in writing relied upon by the Applicants. So much is clear from a covering letter from the First Applicant to the Respondents' solicitors dated 1 September 2005, a copy of which appears with the file documents.
It is apparent from the material relied upon by the unrepresented Applicants that the written contentions have to some extent been adapted from contentions which may be more readily relevant to other applications. Nevertheless the Court is prepared to make due allowance for any inconsistencies and notes that a certain portion of the submissions appear to restate well known principles regarding judicial review.
By way of factual background, it is noted that the claim before the Tribunal was a claim effectively made by the First Applicant with his wife and children relying on membership of the First Applicant's family. In his application, the First Applicant claims he was born in 1955. He speaks, reads and writes Sinhala and English, though is ethnically Sinhala and belongs to the Buddhist religion. He was married in 1983. His occupation in Sri Lanka was gem dealer. He is a Sri Lankan citizen. He lived there until coming to Australia, travelling on a Sri Lankan passport issued in Sri Lanka in 2003. He had been to Australia on business on more than one occasion since 1997.
The First Applicant is a well-educated man, to the extent that after 13 years of education he then obtained a qualification in aeronautical engineering in 1977 and 1978. He had worked in the air force until 1983 and then set up his own export company. He left Sri Lanka legally and appeared to have no difficulty obtaining a passport. It appears he also has a right to enter or reside in the United States of America. His mother resides in Sri Lanka. He has six siblings.
Before the Tribunal, it appears that the First Applicant had indicated he would provide documents from a political party, medical reports and police. However, material was not provided to the Tribunal. In support of his application he told the Tribunal that his parents had been registered government contractors. His father died in 1995. After leaving the air force, the Applicant joined the family business and continued his own gem trade. He has travelled at different times to Singapore, Thailand, Australia, France, the Netherlands, Hong Kong and the United States of America.
The First Applicant claimed to have helped the Sri Lanka Freedom Party (“the SLFP”) financially in the 1989 elections and took an active part in other elections. He had supplied two vehicles for an election campaign and spent money and met all expenses for conducting meetings in his area during election times. He was a strong supporter of a former Minister and claimed that after the 2000 elections a Government MP started harassing him and threatening him with death, and had also threatened his son. He claimed his son was physically harassed at school. He claims that he had no‑one to complain to about the conduct of the MP. It was claimed that both the Applicant and his son received anonymous telephone calls threatening them with harm. The First Applicant's wife and daughter were also afraid.
Before the Tribunal it would appear that movement records of the First Applicant indicated he had visited Australia in October 1997, August 1998, November 1999, March and September 2002. Whilst claiming before the Tribunal that the delegate had erred the First Applicant further indicated that a detailed submission and other supporting documents would be submitted to the Tribunal, though it is noted none were received.
Before this Court the Applicant, who is unrepresented, sought at the commencement of proceedings to refer to what is purported to be a medical certificate relating to his son. The Court refused permission for that document to be relied upon and did so on the basis that it is not appropriate for the Court on judicial review to receive additional documentary material which either postdated the Tribunal hearing or which could and should have been presented to the Tribunal. The Court was satisfied in any event that that material would not be relevant to this application for a judicial review.
The tribunal decision
The Tribunal after considering the material concluded that it did not accept the Applicant had a well‑founded fear of persecution because of his political activities or indeed for any other refugee convention reason.
It made specific key findings which I accepted were adequately set out in summary form in the First Respondent's submissions. Those findings include the following:-
“(a)the Tribunal accepted that the applicant was a Sri Lankan national [CB 129.2];
(b)while the Tribunal accepted that the applicant provided political and financial support to the SLFP, it did not accept that applicant’s claims that he, or his family members, were threatened or harmed as a result [CB 129.3]. To support this conclusion, the Tribunal relied upon:
(i)the scarcity of supporting evidence [CB 129.3];
(ii)the applicant’s failure to seek police protection [CB 129.4];
(iii)the unlikelihood of the applicant’s claim that the treats alleged occurred after he stopped supporting the SLFP [CB 129.3];
(c)the Tribunal did not accept that the applicant faced a real chance of serious harm due to his political opinion, and it did not accept that any damage to his home in Sri Lanka was politically motivated [CB 129.5];
(d)the Tribunal was not satisfied that the SLFP was a group facing persecution in Sri Lanka, and that while some police were reluctant to respond to the limited attacks that did occur, it found that, overall, political violence was not condoned in Sri Lanka [CB 129.7]; and
(e)the Tribunal found that country information suggested that Sri Lanka had taken measures to control political violence, although some incidents still occurred [CB 129.9].”
The submissions
The submissions sought to be relied upon by the Applicants in support of the amended application appear to seek to support a general claim of jurisdictional error constituted by what appears to be a breach of the rules of natural justice and other general criticisms of the Tribunal hearing. Reference is made to the Applicants' circumstances and difficulties, and at one point reference is made to the Tribunal incorrectly interpreting the applicable law which relates to the application for a protection visa.
It is suggested that the Tribunal did not consider properly or at all the question of human rights in Sri Lanka and otherwise failed to properly apply the real chance test. Other criticisms were made of the Tribunal decision which I regard as criticisms of a general nature.
In the Applicants’ contentions, reference is made to country information which the First Respondent notes may support the Applicants’ claim. However, it is submitted by the First Respondent and I accept that that country information is not relevant to this application and as a matter of law should be disregarded.
In the Applicants’ contentions, after referring to country information, the Applicants seeks to refer to the Tribunal decision and make the comment, "Assuming that the Applicant's claims of past persecution are accepted, the issue for the Tribunal is whether he face a real chance of persecution in the event that he return to Sri Lanka" [sic].
The First Respondent has submitted that effectively what the Applicant have sought to do is persuade the Court to disregard the Tribunal's adverse findings of fact in relation to past events and to rather accept the Applicants’ claims of "past persecution". It was submitted by the First Respondent, and I accept, that this Court is not able to do so upon judicial review (see NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]).
Further reference is made by the First Respondent to the Applicants’ contentions which refer to there being "ample evidence to support the claims" and other references which effectively seek to recite the claim rather than indicate any jurisdictional error.
Reasoning
In my view, the submissions by the First Respondent, as indicated, appear to be correct in that the application in this instance seeks to do no more than re‑agitate the issues already determined by the Tribunal, having made findings of fact reasonably open to it. I do not see any error of law in the Tribunal's decision which would constitute a jurisdictional error or indeed any error at all in its reasoning process. It has made findings of fact based upon the claim then before it and has not in my view committed any error in its assessment of the material then before it. It follows therefore that in the absence of any demonstrated error, or indeed jurisdictional error, the application should be dismissed with costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 23 March 2006
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