M41 of 2004 v Minister for Immigration
[2006] FMCA 365
•9 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M41 OF 2004 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 365 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error. |
| Migration Act 1958, s.477(1)(a) |
| Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 |
| Applicant: | APPLICANT M41 OF 2004 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 413 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 9 March 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 9 March 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr. S. Hay |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The First Respondent’s name be changed by deleting the words ‘and Indigenous’.
The application as amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 413 of 2005
| APPLICANT M41 OF 2004 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 January 2004. The Tribunal had affirmed a decision of a delegate of the First Respondent to refuse to grant a protection visa to the Applicant. The Applicant had filed an application for an order nisi with the High Court of Australia in relation to the Tribunal decision on 15 February 2004. The application was remitted to the Federal Court of Australia on 29 July 2004 and that Court in turn transferred the matter to this Court by order on 8 April 2005.
Before this Court the Applicant is unrepresented. He has appeared, however, with the assistance of an interpreter. I note in passing that he appeared before the Tribunal hearing also with the assistance of an interpreter. The commencement of this proceeding today was delayed to enable an interpreter to attend, as clearly in matters of this kind it is essential that the Applicant be granted the advantage of an interpreter.
The Applicant has relied upon an amended application and has further sought to rely upon contentions of fact and law. Both documents were filed on 25 May 2005. The Applicant has indicated through the interpreter that he was assisted in the preparation of both documents and that his views expressed in those documents were translated into English. Likewise, the Applicant produced in Court today a document entitled "Response to respondent's contentions of fact and law." That response dated 9 March 2006, appears to respond to the First Respondent's contentions which were filed on 18 August 2005.
The Applicant has agreed through the interpreter that he received the First Respondent's contentions and again was assisted with the interpretation. Likewise, he received the court book. At the commencement of these proceedings I indicated to the Applicant that the role of the Court was not to simply rehear the facts and reach a different conclusion to the conclusion reached by the Tribunal; rather it was the Court's task, upon judicial review, to determine whether there was an error made, usually an error of law or jurisdictional error, by the Tribunal.
Not surprisingly, in oral submissions to this Court, in addition to the matters raised in the written material, the Applicant was concerned to point out that the Tribunal had erred in not accepting what he told it and not accepting his version of events. In general terms he expressed concern about the current situation and indeed recent history in Sri Lanka. It is clear that it is not the Court's role to consider more recent material in an application of this kind, and nor does it assist the Applicant in this application to simply assert that the Tribunal had not accepted his version of events.
The background in this matter is that the Applicant is a Sri Lankan citizen who arrived in Australia as the holder of a business visa on 8 May 2003. He claimed before the Tribunal that he would face persecution at the hands of the United National Front (“the UNF”) and the United National Party (“the UNP”) if he had to return to Sri Lanka. He claimed this was due to his past political activity as a member of the People's Alliance (“the PA”) and the Sri Lankan Freedom Party (“the SLFP”).
In its decision, it is clear to me that the Tribunal has considered that claim. It made significant and what might be described as genuinely adverse findings against the Applicant. It did so, though, after reciting in some detail the claims of the Applicant which are set out in point form at page 80 of the court book. It states as follows:
·He joined the Sri Lanka Freedom Party (SLFP) and wanted to change the UNP, which was the governing the country. He received death threats but did not bother about them.
·In 1989 he married and went to live in Negombo Town to escape the threats. In 1994 he worked for the election of Mr Jeyaraj Fernandopulle in Gampaha District. As a result the supporters of Joseph Perera threatened his life.
·The PA won a big majority in 1994 and he did not have problems. In 2000 he again supported Fernandopulle in elections on 10 October 2000, and PA formed Government after that election. In the December 2001 elections however PA lost and UNF formed government.
·Although Fernandopulle held his seat, PA lost government, and the applicant received several death threats from UNP thugs, and was harassed and subject to severe torture, mentally and physically. To escape he went to the village where he was born.
·He had the opportunity to go to England and was sponsored by his employer for a 10 day seminar. On 10 October 2000 (sic) he returned to Sri Lanka but his political enemies learned of his return and started to again intimidate and threaten him. One day he was threatened and assaulted on a highway, and decided to leave the country to safeguard his wife and children and his own life. He begged his employer to send him to a foreign country. There was an invitation from the Australian Supermarket Association and he was given consent to go. He obtained a visa for Australia on 25 April 2003 and arrived in Australia on 8 May 2003.
·He had tried to report the harassment to the police but the inspector in charge refused to take down his complaint. He believed that complaining about this may expose him to further damage.
·He was a strong and ardent supporter of the PA in this area and had suffered at the hands of the UNF, being the main party behind the UNP. He cannot rely on the police or authorities because it is hard to get protection when the ruling party is in control of the police.
·Opposition parties and their supporters were subject to persecution and abduction, disappearance and killing, and the government covers up those abuses.
It then having considered the issues proceeded to further consider country information, and in considering country information has clearly referred to country information produced in 2001 and 2003. The relevance of that information will become apparent when considering the grounds now relied upon by the Applicant.
In summary form, the Tribunal's findings have been accurately set out in the contentions of the First Respondent which appear in paragraph 9 of the First Respondent's contentions as follows:-
“9. The Tribunal did not accept that the applicant had a well-founded fear of persecution because of his political activities or for any other Convention reason. The Tribunal relevantly made the following findings:
(a)the Tribunal accepted that the applicant was a member of the SLFP and PA, but not that the applicant was ever a leading figure or high profile member of either organisation [CB 89.9];
(b)in light of the fact that the letter of support from the former Mayor of Negombo did not specifically indicate the nature of extent of the alleged harassment or the basis of the statements contained within it, the Tribunal was not prepared to give the letter any weight as establishing that the applicant was subject to a significant degree of mistreatment or harassment sufficient to constitute serious harm [CB 90.1];
(c)the Tribunal was not satisfied that the applicant’s life was the subject of any serious threat from supporters of his political opponents before December 2001 while the party he supported was in power [CB 90.3];
(d)although the evidence was not corroborated, the Tribunal was prepared to accept that the applicant may have experienced some harassment and intimidation immediately after the December 2001 election by was not satisfied that the applicant was seriously assaulted or severely tortured [CB 90.5];
(e)in light of country information, the Tribunal was not satisfied that the police:
(i)refuse to accept a report that the applicant had been severely tortured after the December 2001 election [CB 90.10];
(ii) failed to take the matter seriously [CB 90.10]; or
(iii)reacted to the complaint made by the applicant in relation to the incident in a way that was politically motivated [CB 90.10];
(f)the Tribunal did not consider that the applicant regarded the alleged threats as particularly serious when they occur because:
(i)he only moved temporarily to his mother’s house after his family expressed concern [CB 91.1];
(ii)he was willing to continue to work in Colombo [CB 91.2];
(iii)he travelled to work each day from his mother’s house [CB 91.2]; and
(iv)he subsequently returned to his family home [CB 91.2];
(g)the Tribunal did not accept that the applicant travelled to the UK to escape his persecutors or that his trip to Australia was anything other than a business trip [CB 91.4];
(h)due to the lack of corroborating evidence and the applicant’s failure to report it, the Tribunal was not satisfied that the applicant was assaulted after his return from the UK [CB 91.06];
(i)the Tribunal was satisfied that the level of political violence directed to ordinary or low level supporters of opposition parties had substantially reduced since the December 2001 election [CB 92.1];
(j)although there were instances of politically related violence in Sri Lanka, the Tribunal was satisfied that the violence was not perpetrated, supported or condoned by the government [CB 92.3];
(k)the Tribunal did not accept that crimes against opposition members and their supporters were not investigated in Sri Lanka, or that the applicant would be denied Effective state protection because of his political opinion or for any other Convention reason [CB 92.6];
(l)the Tribunal considered that even if the applicant did face Convention related persecution because of his political opinion in his home area, he could reasonably relocate to Colombo where he had worked for many years and had not faced harassment [CB 93.6];
(m)the Tribunal found the applicant did not have a well founded fear of persecution for a Convention reason if he returned to Sri Lanka now or in the reasonably foreseeable future [CB 93.9].”
The Applicant, in the amended application and in the contentions of fact and law, has sought to rely upon a number of grounds. Essentially, they may be conveniently referred to as an inability of the Tribunal to be satisfied that the incidents were sufficient to constitute serious harm or an attack made upon the Tribunal's findings that it was not satisfied the Applicant was severely tortured.
Further, the Applicant seeks to assert that the Tribunal's consideration of his claim that he had been mentally affected by attacks by UNP thugs towards PA party members again was a finding which attracted criticism and could properly be regarded as an error. Otherwise, it seems to me that the Applicant has sought to challenge the reliance by the Tribunal on country information, asserting that it is either contradictory or that there has been a denial of procedural fairness in the manner in which the Tribunal has considered that country information.
The Applicant, in the more recent document filed in Court this day, has again sought to highlight the issue concerning the Tribunal's findings in relation to the claim that the Applicant was tortured and asserts that in particular, his mental trauma was totally ignored. He further refers to criticisms of the country information.
The First Respondent submits that these grounds and claims in this application are without substance. The First Respondent, in the written contentions, refers to and relies upon the Full Court Federal Court decision in the matter of Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 and in particular, reference is made in that Full Court decision to paragraphs 16 to 17 of the Court's decision as follows:-
“16 The primary judge said the Tribunal could reject the respondent’s application for a protection visa only if either his claims were rejected or if it found that circumstances had so changed in Fiji as to make the claims no longer relevant to his likely treatment on return. In our view, in a case such as the present, the Act imposes no obligation on the Tribunal to make positive findings either accepting or rejecting claims. In reviewing a decision, the Tribunal stands in the shoes of the original decision-maker, in this case the Minister’s delegate. See s 415 and Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. The delegate is bound by s 65 of the Act, as it applies to a protection visa, to grant the visa if satisfied that the applicant is a person to whom protection obligations are owed. In the absence of that satisfaction, the section requires the delegate to reject the application. Section 65 shows that the relevant decision is not whether a person is or is not a refugee, but whether the decision-maker is satisfied as aforesaid. As was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-275:
"A condition of determination is the Minister’s satisfaction. Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that a person is a refugee. Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution. This is the ‘decision’ for which provision is made by the Act."
17 We are unable to agree with his Honour’s statement that "in the absence of findings as to the facts, either favourable or unfavourable to the [respondent], the Tribunal could not reach the requisite state of satisfaction, or the requisite state of non-satisfaction": see [9]. As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction. In SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 the Tribunal found that the applicant’s claims were at "such a general and vague level that the Tribunal cannot establish the relevant facts", and therefore had made no findings either accepting or rejecting the claims. The Tribunal’s approach was upheld by a Full Court at [15]:
"It can be seen from the form of [s 65(1)] that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied."
It is submitted on behalf of the First Respondent that in this case the Tribunal, similar to the decision referred to, was unable to be affirmatively satisfied that the relevant visa criterion was met. It is evident from the First Respondent’s contentions relied upon this day that the Applicant's claim in this regard appears to be misconceived when applying the authority relied upon by the First Respondent. The Tribunal in particular, it is submitted and I accept, on the basis of the material before it, simply could not be satisfied that the harassment and intimidation which may have been suffered by the Applicant after the December 2001 election was sufficient to constitute serious harm.
In making that finding, I am satisfied the Tribunal was simply making a finding of fact which was reasonably open to it on the material produced by the Applicant in support of his claim. I accept, as submitted by the First Respondent, that the Tribunal was required to assess the degree of probability that the Applicant would face persecution in the future. It did that after analysing relevant information, and again, although it is clear the Applicant challenges its finding and even before this Court seeks to refer to material demonstrating what he would claim to be current instability in Sri Lanka, including the alleged murder of a senior police officer, that does not in my view provide appropriate support for a contention that the Tribunal has erred in its assessment of the material before it.
Likewise, it seems to me that in this application the Tribunal was entitled to decide whether or not the claim had been made out. In this instance that included consideration of the information provided to it, including the claim that the Applicant had been severely tortured. The Tribunal was further entitled to consider, as it did, the claim that the Applicant had been mentally affected by attacks perpetrated by UNP thugs towards PA members. A proper reading of the Tribunal's decision-making indicates to me that it has properly considered the claim as put by the Applicant, and in particular has addressed and taken into account the issue of non‑physical persecution.
The Tribunal considered, in my view, the relevant issues, but ultimately reached a conclusion that the harm suffered was not of sufficient seriousness to constitute persecution under the convention. That critical finding again could be properly be described as a finding reasonably open to the Tribunal on the material before it.
When considering the country information, it is clear that the Tribunal considered a 2001 DFAT report. I shall incorporate from the court book relevant extracts from that report:
“OUR ADVICE IN THE PAST HAS BEEN THAT ALL CITIZENS CAN AVAIL THEMSELVES OF THE PROTECTION OF LAW ENFORCEMENT AUTHORITIES. HOWEVER, THE RELIABILITY AND EFFICACY OF AUTHORITIES IN RESPONDING TO OR INVESTIGATING COMPLAINTS HAS BEEN MIXED.
RECENT (VERY PUBLIC) FAILURES OF POLICE TO RESPOND TO COMPLAINTS ARE PARTLY ATTRIBUTABLE TO WEAKNESSES OF ENFORCEMENT MECHANISMS BUT SOMETIMES ALSO LINKED TO CORRUPTION OR POLITICAL PRESSURE. FOR EXAMPLE, DURING ELECTIONS, POLICE HAVE BEEN KNOWN TO BE USED BY THE RULING PARTY FOR POLITICAL PURPOSES AND TO TURN A BLIND EYE TO ACTS OF POLITICAL VIOLENCE AGAINST OPPOSTITION PARTIES.
ANECDOTALLY AT LEAST, PERSONS AFFILIATED TO OPPOSITION PARTIES HAVE OCCASIONALLY FOUND IT DIFFICULT TO OBTAIN POLICE PROTECTION OR TO ACCESS JUSTICE. (CX56581 – DFAT CIR 243/01 – 20 August 2001 – Response to CIS Request).”
It is also important to note the Tribunal then proceeded to consider later reports in 2003. It was noted that the Applicant claimed that after the 2001 election he attempted to report an incident to the police and that was not taken seriously.
It is clear that that claim made to the Tribunal was not accepted by the Tribunal. The Tribunal cited newspaper reports of 9 December 2001 which stated that officers had been strongly instructed to carry out their duties impartially. That report is referred to by the Tribunal in its reasons. Again it ultimately made a finding of fact open to it on the material before it. I accept that the weight given to that material, as with other material, in this instance is entirely a matter for the Tribunal.
On my reading of the material and the claim made before the Tribunal, I am otherwise satisfied that there is no error disclosed in the manner in which the Tribunal has embarked upon its task, including the question of whether or not is had afforded procedural fairness to the Applicant in dealing with country information. I accept that in this instance the Tribunal has made a decision free of jurisdictional error. It follows that the application should be dismissed with costs.
Given my finding that there is an absence of jurisdictional error,
I further accept that in this instance the application has not been made within the time prescribed in s.477(1)(a) of the Migration Act 1958 (“the Act”) and accordingly the application is out of time.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 9 March 2006
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