M71 of 2006 v Minister for Immigration
[2007] FMCA 852
•19 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M71 of 2006 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 852 |
| MIGRATION – Refugee Review Tribunal – general grounds – no point of principle. |
| Migration Act 1958 |
| Applicant: | M71 OF 2006 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1068 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 19 March 2007 |
| Date of last submission: | 19 March 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2007 |
REPRESENTATION
| The Applicant appearing in person. |
| Counsel for the First Respondent: | Mr Mosby |
| Solicitors for the First Respondent: | Clayton Utz Lawyers |
ORDERS
That the application is dismissed.
That the applicant pay the respondents’ costs, fixed in the sum of $6,500.
That the first respondent's name be amended to reflect the current name of the minister in her ministerial capacity.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1068 of 2006
| M71 OF 2006 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| 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 made on 10 April 2006. The applicant is a citizen of Sri Lanka who arrived in Australia on 3 September 2005. On 10 October 2005, she lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs, as it was then called.
On 16 December 2005, a delegate of the Minister refused to grant the applicant a protection visa. On 19 January 2006, she applied for a review to the Refugee Review Tribunal. On 10 April 2006, the Tribunal affirmed the decision of the delegate not to grant a protection visa. On 26 May 2006 the applicant filed an application for show cause proceedings in the High Court of Australia, and that matter was transferred by consent to the Federal Magistrates Court on 15 August 2006.
The proceedings were set down for hearing in this court with directions for the filing of written statements of facts and contentions. The grounds upon which the applicant relied are of very broad compass and are as follows:
(i) The decision made by the Second Defendant:-
(a)Was made without jurisdiction or is affected by an error of jurisdiction
(b) Is affected by an error of law
(c)Is so unreasonable that no reasonable decision maker could have made it
(d) or based on a finding for which there was no evidence or other material;
(e) Takes into account irrelevant considerations
(f) Fails to take into account relevant considerations
(g) Was an improper exercise of power conferred by the Migration Act 1958
(h) Was otherwise contrary to the law
(i) Was made in bad faith.
(ii) Further in the alternative, the second Defendant
(a)Failed to accord the First and Second Plaintiff natural justice
(b)Failed to follow the procedures required by the Migration Act.
(c) Asked the wrong questions or misconceived her duty.
None of the grounds as set out in the application provide any particulars from which one can ascertain what it is the applicant said occurred before the Tribunal that would give rise to the conclusions set out in the grounds. The failure of the applicant to provide a statement of facts and contentions as directed has left this problem unresolved. The Minister's lawyers, not surprisingly, attempted to address as best they could all of these grounds, without any particulars of what fact or circumstance was said to show that such a ground was made out.
The matter came on for hearing last week; however, an interpreter was not available, despite a request, and therefore it was adjourned to today so that an interpreter could be booked. There is an interpreter today and the applicant was able to be heard through the interpreter.
Today, the applicant says that all of her material was ‘told to the Tribunal’ and that the only matter that she takes issue at is that she says she fell ill before migrating to Australia and that this fact or circumstance ought to have been taken into account or given greater weight by the Tribunal. It appears that what she refers to is the proposition that this fact or circumstance would effectively corroborate her version of events with respect to the issues that gave rise to what she said was her fear of persecution in order to satisfy the visa requirements.
The basis of the applicant's claims before the Tribunal are set out on pages 4 to 5 of the decision:
The applicant’s claims were presented in answers to relevant questions in the Protection Visa application form and can be summarised as follows:
· The applicant was employed as a Private Secretary to Sri Lankan MP Dharmadasa Banda since 1994.
· Mr Banda is the MP for Monaragala District for the UNP, the party now in opposition.
· She is closely related to Mr Banda.
· Through her employment she was closely involved in local politics and as a result was targeted by her employers political rivals on several occasions.
· She has received several threats to her safety including death threats and she fears that with the forthcoming Presidential election campaign these threats will be carried out.
· She fears persecution by opposition politicians especially Mr Vijithamuni Soysa of the PA who is Mr Banda’s rival.
· During the 1999 Presidential Election campaign two of her colleagues were fatally shot by Soysa’s supporters but no charges were laid despite the evidence.
· During 2000-2001 she visited Singapore deliberately to avoid being seen with Mr Banda. He was defeated in 2001 and following his defeat threats to her security increased.
· She has been separated from her husband since 1996; he is currently residing in the USA.
· If she returns to Sri Lanka she will be required to participate in election campaigns and she may be left with no option (financially speaking) but to take up employment with Mr Banda again. She is likely then to be targeted by Mr Soysa and his supporters.
· She has no confidence in the Sri Lanka authorities and their ability to protect her.
The applicant gave oral evidence to the Tribunal on 4 April 2006.
The Tribunal recounted the circumstances and discussed the factual matrix that gave rise to them. The Tribunal also inquired as to whether there were other circumstances stating:
When asked whether she had anything else to add, the applicant stated that after an election meeting they were set upon by a crowd and she received injuries. She then went into hiding and had some sort of illness for which she was taken to hospital. She stated that this occurred around February 2005. The Tribunal pointed out that there was no election around this time. The applicant then stated that she did not receive injuries and that she went into hiding in the year 2000 staying with friends near Kuranegala. It was at the beginning of 2005 that she had been taken to the Colombo General Hospital’s accident ward. Later the adviser clarified that the applicant had instructed that she had suffered a nervous breakdown for about 2 weeks at the beginning of 2005.
The Tribunal's findings were such that they largely did not accept the evidence of the applicant, stating:
The essence of the applicant’s claims is that she would be persecuted on return to Sri Lanka for her real or imputed political opinion by members of a political party of different persuasion and the authorities would not provide protection for her.
The evidence presented related to the applicant’s association with a UNP MP, Dharmadasa Banda who also happens to be related to her. She stated that she was his private secretary. The Tribunal accepts that the applicant worked for Mr Banda but notes that work which she did for him was more akin to administrative support (as described by her adviser) than that of a Private Secretary of an MP as it would be understood in the Australian context. The Tribunal accepts that the applicant may have on occasion, been threatened, especially around election time as claimed, including in vehicles in which she may have been travelling being stopped: it also accepts that she may have received some threatening telephone calls. The evidence indicates that these incidents occurred either at one of the offices of the MP or in some particular cases when the applicant was travelling with or for the MP. The applicant described the context of politics in Sri Lanka and the Tribunal accepts that these kinds of activities occur between rival political parties. The Tribunal notes that the applicant is no longer employed by the said MP.
The Tribunal does not accept that the applicant was injured on one occasion: the applicant retracted this statement soon after having made it at the hearing, nor does it accept that the applicant ‘went into hiding’ for a time to avoid problems, the applicant’s evidence was vague and contradictory on this point.
The Tribunal noted that the applicant could not recall either the day or the month of the election in 2004 in which she was said to be involved, in the sense of being a private secretary to a member of parliament. Not surprisingly, the Tribunal found this an indicator that she was not so heavily involved in the MP's activities as she put forward to the Tribunal.
The Tribunal also noted:
The applicant described that she had been taken to hospital with what was characterised as a nervous breakdown by the adviser in early 2005. The applicant was not provided cogent evidence that this episode was either occasioned or was the result of her employment of the activities of people in other parties. Under the circumstances the Tribunal finds that no link has been made out between her illness and her claimed persecution.
The Tribunal went on to consider whether or not the events that were alleged to have occurred with respect to threats and telephone calls could constitute the type of harm which would give rise to a visa application in this category in any event, saying:
In addition to the above points, the Tribunal does not accept that the threats and telephone calls she received constitute harm of the type and severity to fall under the definition of persecution. It is notable that throughout the years of her work none of the threats have been carried out. This is irrespective of the familial relationship with the MP or the work relationship with the MP.
The Tribunal considered whether or not there may be some form of family relationship or membership of social groupings that might give rise to a valid protection visa claim, saying at page 9:
The Tribunal has also considered whether the family relation which exists between the applicant and Mr Banda could be a significant factor in any future targeting of the applicant; in other words the Tribunal has considered whether the applicant faces a real chance of persecution for reason of her membership of a particular social group, namely the family. The description which the applicant gave of the familial relationship with Mr Banda could, at best, indicate a distant relationship through Mr Banda’s mother’s side. The applicant has not claimed specifically that she has been in the past or would be in the future, targeted for this reason. Be that as it may, the Tribunal accepts that the existence of a particular social group being the family of the applicant could reasonably be argued, however it does not accept that the applicant faces a real chance of persecution for this reason. The Tribunal relies on the history of the applicant which shows no incidents or claims of any incidents in the past attributable to this particular characteristic of the applicant and considers the lack of a close recent relationships with Mr Banda, not even an employer-employee relationship, would make the chance of her being targeted because she distantly related to him, remote and insubstantial.
Ultimately, the Tribunal found:
The Tribunal thus finds that on return, the applicant, whether she would be re-employed by the MP or not, does not face a real chance of persecution for reason of her imputed or real political opinion or membership of a particular social group, now or in the reasonably foreseeable future. The Tribunal thus finds that her fear of persecution for a Convention is not well-founded
It appears clear that the Tribunal did have regard to the applicant suffering an illness in 2005 when it recounted that she described that she had been taken to hospital for a nervous breakdown. The Tribunal though found that they were not satisfied that there was a link made out between the illness and any claimed persecution.
In this regard, it cannot be said that the Tribunal failed to have regard to relevant evidence or failed to take it into account. The fact that the Tribunal had regard to it and formed a different view as to its relevance and cogency to that which the applicant had hoped, is not of itself an error of jurisdiction; indeed, it is the essence of the work that a Tribunal does in considering the evidence and making findings of fact.
With respect to the specific grounds raised, I should deal with each of them briefly. The first is that the decision was made without jurisdiction or effected by error of jurisdiction. Clearly the Tribunal did have jurisdiction to determine an application for review of a protection visa claim. Whether or not there is an error of jurisdiction that requires consideration of any matter that might point to the tribunal erring in the exercise of its jurisdiction, aside from the matter dealing with the applicant's illness. No other specific error has been pointed to.
It is next alleged that the decision was effected by an error of law. The relevant law is summarised at pages 2 to 4 of the decision. There is nothing in that summary that would give rise to concern that the Tribunal member was not aware of the relevant law, nor in the balance of the decision to indicate that the Tribunal did not apply the law as set out earlier in the decision.
It is also alleged that the decision is so unreasonable that no reasonable decision‑maker could make the decision. It is difficult to conclude that that would be the case. The Tribunal discusses the evidence that the applicant put before it and reaches various findings of fact. It does not appear to me that those findings of fact, at least on the basis of the material before me, were not open to a reasonable decision‑maker.
It is further alleged that the findings were based upon propositions for which there was no evidence. Again, it does not appear that this is the case in this decision. Nothing is pointed to that the Tribunal has found which is said to be without evidence. It appears that the decision is largely based upon the Tribunal's assessment of the applicant's version of events that she gave to the Tribunal.
Whilst it is alleged that there are irrelevant considerations taken into account, I see none on the face of the decision and nor does the applicant point to any. To the extent that it is alleged that the decision fails to take into account relevant considerations, the applicant refers to her illness, an illness is referred to and forms part of the fact‑finding of the Tribunal.
To the extent that it may be said that the applicant suffered an illness close to the time of leaving Sri Lanka, which would also affect the decision, it is not said that it was a direct result of persecution and does not appear to me to have been a fact of such significance that the failure to mention it in the reasons given would of itself be jurisdictional error. In any event, there is no evidence before me that further material was placed before the tribunal, there is no affidavit setting out the transcript of the Tribunal hearing.
It is alleged that this decision was an improper exercise of power conferred by the Migration Act 1958. I have difficulty following that proposition in that the Tribunal's very reason for being is to exercise the precise powers that the Tribunal did exercise in this case.
It is alleged that the decision is otherwise contrary to law: this appears to be a catch‑all ground which takes the earlier allegation of error of law no further.
The last of the grounds is an allegation that the decision was made in bad faith. This is a serious allegation. It is unfortunate that such an allegation should be made without any foundation in the material and then not pursued at the hearing. There is nothing in this case to suggest that the Tribunal member did not approach the decision with an open mind and with the appropriate level of honesty that is required of an independent decision‑maker.
The next group of grounds contains an allegation that the Tribunal failed to accord the applicant natural justice. It is not said how this has occurred. The Tribunal clearly had regard to the material placed before it and the evidence given by the applicant to the Tribunal (the applicant gave oral evidence on 4 April 2006). It is also alleged that the Tribunal failed to follow the procedures required by the act. However, no defect in the procedures adopted by the Tribunal is pointed to.
Finally, it is alleged that the decision‑maker asked the wrong questions or misconceived their duty. Again, no particular questions have been pointed to that were answered by the Tribunal member in the decision that were inappropriate, nor a failure by the decision‑maker to deal with particular issues. Indeed it appears that the decision‑maker explored issues that had arisen in order to ensure that all of the appropriate questions were in fact answered.
In these circumstances, I am not satisfied that the applicant has established that there was any jurisdictional error on the part of the decision‑maker and I therefore refuse the application.
In this case, the applicant has been unsuccessful, and unsuccessful applicants should usually pay the costs of the respondent. The applicant says that she is not in a position to pay costs. An inability to meet a costs order is not of itself a reason for not ordering costs. The applicant brought the proceedings against the Minister, the Minister was successful and has incurred costs and fees in defending the proceedings.
Indeed, in this case the proceedings were not fully prosecuted, in the sense that applicant provided very general grounds for judicial review covering all possible bases upon which judicial review could occur but providing no particulars that linked those grounds with the actual decision in her case and failed to provide any written outline. In those circumstances, I am satisfied that it is appropriate that the applicant meet the Minister's costs.
I have regard to the Federal Magistrates Court scale and the High Court scale and the steps that have taken place in this matter. The application commenced in the High Court of Australia and had to be remitted to this court, where an application sought ordinarily be brought when it is an application of this type.
Invariably, the High Court remits first instance applications to either this court or the Federal Court to be dealt with at the trial level, only to return to the High Court on appeal after a Full Court has considered the matter. That is necessary to enable the High Court to have sufficient time to deal with the significant appellate work that it undertakes. For these reasons, it is appropriate that proceedings be commenced in a lower level court and not directly in the High Court.
In any event, as the applicant has been unsuccessful, it is appropriate that she pay the costs of the proceedings, to the extent that they were in the High Court. Under the relevant scales and rules, it is open to me to fix the amount of those costs. I have regard to the amount sought and the nature of the proceedings and I am satisfied that the costs sought are reasonable. Given the overall amount of costs, it does not appear to me that the case warrants the further inquiry of an assessment or taxation.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: J.McLean
Date: 19 March 2007
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