M188 of 2004 v Minister for Immigration
[2006] FMCA 196
•6 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M188 of 2004 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 196 |
| MIGRATION – Refugee Review Tribunal – refusal of a protection visa – multiple grounds of review – claims made in application not made before tribunal – no matter of general principle – application refused. |
| Migration Act 1958, ss.424A, 430 |
| Applicant: | APPLICANT M188 OF 2004 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 608 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 6 February 2006 |
| Date of Last Submission: | 6 February 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 6 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr E. Heerey |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 20 May 2005 be dismissed.
The applicant pay the first respondent’s costs fixed at $7,000.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 608 of 2005
| APPLICANT M188 OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant in this matter is a 45-year-old from Sri Lanka. She is married and has a son. She first came to Australia in 2002 to compete at the Masters Games in Melbourne before returning to Sri Lanka. She last arrived in Australia on 29 October 2003 on a short stay business visa to compete in the Masters Games to be held in Canberra that year. Her husband and son have remained in Sri Lanka.
On 11 December 2003 the applicant applied for a protection visa. Her application was supported by a handwritten statement setting out the basis of her claim which is in the following terms:
In 1982 I was the secretary of the United National Party Union in our village at [name of town] in [member of parliament’s] seat and continued helping the government for elections. At [name of town] also I continued helping the present government with elections as I am popular in athletic sports easy to contact and converse with people. Year 2002 I came to Melbourne for Masters Game and went back to Sri Lanka. This time 2003 I came to Canberra to Masters Games. November 25th 2003 when I gave a call to my home in Sri Lanka my husband told me that some gang has come to my house and asked my husband where I am and they have asked my husband to produce me because I am doing politics, and they have told him that now Hon President has taken over three secs (Media, Defence, Ministry, Internal Affairs) if in Sri Lanka now and in future your wife cannot do politics for United National party (president Government) and somehow other we are going to trace her and if she denies we are definitely mishandle her and she has threatened my husband also, and now my husband also hiding after work and my husband asked me not co come to Sri Lanka.
I seek protection from Australia.
On 22 April 2004 a delegate of the first respondent refused to grant the applicant a protection visa. On 20 May 2004 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. There was a tribunal hearing on 31 August 2004 where the applicant attended and gave evidence. The applicant was assisted by an interpreter, although at the hearing today she indicated that she could speak English and did not need the assistance of an interpreter. She was also assisted by a migration agent. After the tribunal hearing she submitted a further letter (which appears in the court book at page 105) in support of her claims.
On 10 September 2004 a decision was made by the tribunal and handed down on 24 September 2004. The tribunal concluded that the applicant, whilst having been a supporter of the UNP party who had assisted in elections and providing some financial support to the party, was what the tribunal described as a low level supporter.
The tribunal did not accept that an incident took place in November 2003 as claimed by the applicant whereby threats were made that JBP supporters would harm her. The tribunal noted that she had been involved for 22 years in the UNP activities but that since 1993 she had reduced her election work and her public involvement. Ultimately the tribunal found that she had a relatively low level profile and was satisfied that she was not of interest to anyone because of her political opinions.
The applicant sought review of the decision in the High Court on 22 October 2004. On 23 February 2005 her matter was remitted to the Federal Court by Hayne J.
On 20 May 2005 Gray J of the Federal Court transferred the matter to the Federal Magistrates Court. At the time Gray J transferred the matter to this court his Honour made orders with respect to the filing and service of contentions of fact and law by the applicant to occur by 1 July 2005. This did not occur and similar orders were made by Registrar Bardsley on 4 July 2005 that the applicant file and serve contentions by 12 August 2005.
The matter came back before Registrar Bardsley on 14 September 2005, the contentions having been filed shortly before that date. It was then listed before me.
The document filed by the applicant as her statement of facts and contentions is somewhat rambling in its nature and it is difficult to ascertain from them precisely the claims for judicial review that the applicant pursues. This is not surprising given that in oral submissions the substance of the applicant's claim is that she does not wish to return to Sri Lanka because she believes that her life is at risk and seeks to have the tribunal's decision overturned in substance because she does not agree with its findings. The documents, she explained to counsel for the respondent, were prepared by the migration agent. It appears to me that one can identify from those documents eight potential grounds being put forward on behalf of the applicant.
Ground 1
The first ground is a claim that section 430 of the Migration Act 1958 has not been complied with. Section 430 provides as follows:
430 Refugee Review Tribunal to record its decisions etc.
(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.
(3)Where the Tribunal has prepared the written statement, the Tribunal must:
(a)return to the Secretary any document that the Secretary has provided in relation to the review; and
(b)give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
It does not appear to me that the tribunal has failed to comply with s.430 in that the tribunal has prepared a written decision setting out its reasons and findings referring to the evidence and materials upon which those finding were made. The decision runs to some 17 pages and deals with the significant matters in appropriate levels of detail. I find that this ground does not found a remedy or relief for the applicant.
Ground 2
The second ground arises from the third page of a document headed Amended Application where it is alleged that the tribunal had not addressed one of the applicant's fundamental concerns, being her safety from security forces or government authorities. The document goes on to state:
The tribunal has failed to properly consider the past record of the security forces and the danger to the applicant on that past record and the tribunal has failed to explain why the circumstances she experienced in the past is unlikely to re‑occur, given that it is relevant to a material issue.
It was pointed out by counsel for the respondent, there is nothing in that material to indicate that the applicant had ever expressed a fear of persecution at the hands of security forces or government authorities. There is nothing in her written statement annexed to her application for a protection visa or for review at the tribunal level, nor in the oral evidence as recounted by the tribunal. Her case was based upon claims of mistreatment at the hands of JBP supporters, an issue which was squarely addressed by the tribunal in its decision making process. In any event, it appears that the tribunal considered country information and ultimately concluded that, nowadays at least, Sri Lankan citizens can avail themselves of state protection.
It appears to me that the tribunal has considered the applicant's claim with respect to the JBP and it was not asked to consider a claim with respect to security forces. For these reasons this ground does not found an application for judicial review.
Ground 3
The third ground that appears in the material is that the applicant would suffer persecution because her political opinions were different to that of the ruling party who is not the party that she was a supporter of. Such claims were not put in those terms to the tribunal. To the extent that this refers to persecution by JBP supporters, it was dealt with by the tribunal.
Ground 4
The fourth potential ground states that because the applicant is now well known to the authorities, if she were to return to the island she would suffer interrogation and detention because of her political affiliation and activities with UNP party politics. It is difficult to see that this ground supports judicial review proceedings, given that she has not ever claimed that she was detained or interrogated by government authorities or security forces. I therefore find that this ground does not provide a basis for judicial review.
Ground 5
The applicant's documents contain a list of 11 numbered grounds of judicial review which appear rather like a law student's notes cataloguing the potential areas upon which one could make inquiry to ascertain whether there was a basis for judicial review proceedings. There is nothing in the material to indicate how any other than the last of those grounds is said to apply to the particulars to this case.
The last of those grounds though, which appears to me to be the fifth possible basis of a judicial review application, contends that there was no evidence upon which the decision‑maker could find that the applicant, if returned to Sri Lanka, would not be targeted by security forces. The difficulty with this ground, however, is that the tribunal did not make a finding to that effect. The tribunal did not turn its mind to that specific issue as she did not claim that she would be targeted or otherwise persecuted by the security forces. Rather, the tribunal found that the applicant had a relatively low profile and was satisfied that she was not of interest to anyone because of her political opinion. I therefore find that this is not a ground for judicial review.
Ground 6
The sixth matter is an argument that the decision‑maker should have had regard to the applicant's own circumstances and problems in the light of her past persecution and victimisation or unlawful treatment. It seems clear from reading the decision that the tribunal recounted the applicant's past circumstances and specifically considered an incident that she relied upon in November 2003. The tribunal did not accept that the incident occurred and did not accept that her husband went into hiding as a result of it. Whilst the applicant does not accept that finding of fact by the tribunal, it is not a finding which can be the subject of judicial review. Judicial review is not for the purpose of reviewing a tribunal's findings of fact.
Ground 7
The seventh potential ground relates to whether or not the tribunal considered properly, or at all, the question of the human rights history of Sri Lanka and how the standard of respect of human rights, given in Sri Lankan society, might affect the applicant. The applicant did not present her claim on this basis. Her claim was presented on the basis of allegations of persecution with respect to her political opinion. In these circumstances it is difficult to see how this has relevance to the applicant's claim in this case.
Ground 8
The final matter was the allegation that the tribunal erred in law in failing to properly apply the ‘real chance test’. The test was properly identified by the tribunal at the beginning of its decision. It does not appear to me from the reasons that the tribunal erred in its consideration of the applicant's circumstances in this regard.
Additional potential ground
Whilst not raised in the material of the applicant, there was a letter provided to the tribunal after the hearing. Counsel for the respondent quite properly addressed the issue of whether or not the letter would provide any basis for attack on the decision at the hearing. Counsel pointed out that the tribunal appears to have not placed any weight upon the letter, which was a matter for it, on the basis that the letter was inconsistent with the applicant's evidence at the hearing. As the applicant sent the letter and it was not obtained from any other independent source, considerations that might arise under section 424A do not apply in this case. In the circumstances this is not a basis for judicial review.
I therefore have no choice but to refuse the current application for review.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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