Mzlan v Minister for Immigration
[2004] FMCA 90
•27 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZLAN & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 90 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Zheng v Minister for Immigration and Multicultural Affairs [2000] FCA 670
A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
| Applicants: | MZLAN, MZLAO, MZLAP & MZLAQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ1301 of 2002 |
| Delivered on: | 27 February 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 18 February 2004 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Livermore |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondent: | Mr Gilbert |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDER
The application is dismissed.
The first and second named applicants pay the costs of the respondent fixed in the sum of $6,500.
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 |
MZ1301 of 2002
| MZLAN, MZLAO, MZLAP, MZLAQ |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicants are a husband and wife and their two children. They are citizens of Sri Lanka and arrived in Australia on 17 September 2000 on a visitors visa. On 13 December 2000 they lodged an application for Protection (Class XA) visas on the grounds that the primary applicant (the husband) was a refugee.
Under s.65(1) of the Migration Act 1958 (Cth) (“the Act”) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.
The applicants’ claim to be entitled to the grant of Protection visas on the ground that they are refugees as defined in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. Article 1A(2) of the Convention defines a refugee as any person who:
... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
History
The applicant husband was born on 24 March 1948. He is of Singhalese ethnicity and worked as an automobile engineer whilst in Sri Lanka. However, in the preceding five years prior to his arrival in Australia he worked and resided with his family in Kenya. That period concluded in July 2000 when the family returned to Sri Lanka. On
16 September 2000 the family departed Sri Lanka and travelled to Australia arriving the following day. They travelled on their own passports and had valid visas to enter Australia.
The primary applicant made application for a Protection visa in application dated 11 December 2000. By correspondence dated
7 February 2001 the Department notified the applicant that he had been refused a Protection visa. Accordingly his family members who were included in his application but whom have no claims of their own to be refugees, were also refused a Protection visa.
On 14 March 2001 the Refugee Review Tribunal (hereinafter “the RRT”) received the applicant's application for review of the decision of the delegate. The applicant gave oral evidence to the Tribunal on
10 October 2002 and the decision of the RRT dated 31 October 2002, was handed down on 22 November 2002. The application before me is an application in relation to that decision such application being filed on 23 December 2002 and amended by amended application filed
16 February 2004. The application is made pursuant to s.39B of the Judiciary Act 1903 (Cth).
The applicant alleges that the RRT failed or alternatively constructively failed to exercise its jurisdiction on the grounds as set out in that amended application, the particulars being as follows:
Having accepted the evidence given by the applicant the Tribunal considered the case only on the basis of the applicant's potential membership of a social or political group, when the central element of the Applicant's claim was that he would suffer persecution because he was a political whistleblower.
In the proceedings before me each of the respondent and applicant relied upon contentions of fact and law filed by them and the applicant provided a transcript of proceedings before the RRT.
The applicant’s claims
Essentially the applicant's claim revolved around what he said were the consequences flowing from knowledge he had obtained while working in Sri Lanka (before going to Kenya) for a company named Latec.In or around 1995 and whilst he held the position of senior automotive engineer in charge of the Bus building plant the applicant became aware of certain corrupt dealings between one Mr Wettasinghe and members of the government concerning the sale of the State owned enterprise to Mr Wettasinghe and his then dealings with assets and personnel of the enterprise.
Although there was significant publicity in relation to allegations of corruption the applicant said that he knew additional information which had not been made public. The applicant then left Sri Lanka in 1995 to work in Kenya and whilst there for a five year period he mentioned these activities to fellow Sri Lankans at a celebration at the Sri Lankan High Commission. The applicant alleged that Mr Wettasinghe learned of the applicant's comments and opinions and contacted him offering him a job in Sri Lanka. The applicant declined the offer and Mr Wettasinghe abused him. The applicant received information that the job offer was not genuine and this caused him to further fear Mr Wettasinghe's motives. His employment in Kenya was subsequently terminated, he believes because of the influence of Mr Wettasinghe.
The applicant obtained a visa to visit family in Australia in Nairobi but prior to travelling to Australia returned to Sri Lanka for some six weeks. He said that he received threatening phone calls at that time which he assumed were at the behest of Mr Wettasinghe and that he was told that Mr Wettasinghe was not happy with him because he regarded the applicant as a witness against him in relation to his corrupt activities and was afraid that the applicant would expose him. The applicant said he had decided to take his family to Australia in the hope that the PA party would lose the forthcoming election. The PA party won the election and the applicant claimed to fear that he would be killed if he returned to Sri Lanka. He claimed the government would not protect him because of the involvement of senior government people with Mr Wettasinghe. He claimed top politicians including the President who was a friend of Mr Wettasinghe, dealt violently with those who opposed or threatened him.
The applicant did not report to the police after receiving the threatening phone calls. He said he did not do so because government people were involved.
Mr Wettasinghe was said by the applicant to be related to prominent UNP politicians. The applicant was not politically active in Sri Lanka and nor was he a UNP member. The applicant claimed that Mr Wettasinghe bought the automotive workshop owned by the State Transport Authority for a sum less than its stated value. He was able to do this by making a deal with the then UNP government. He claims that Mr Wettasinghe retrenched many of the existing workforce and sold the assets of the workshop which had been owned by the State Transport Authority. He established an assembly plant to build buses with the main buyer for the buses being the Government Transport Board.
The applicant stated that this deal was exposed by the media and the opposition, the People's Alliance Party (PA), which resulted in public disquiet and demonstrations by the retrenched workers. The applicant stated that when the workshop had been under the government's control it had been used by UNP politicians to provide employment in the area to fulfil election promises. The retrenchments caused hardship which was exploited by the PA for political purposes. The PA campaigned against the deal in Parliament and encouraged violent protests in and around the workshop during which two people were killed by Mr Wettasinghe's bodyguards. The applicant stated that the UNP lost the election in 1995 to the PA. He stated the change of government made the situation at Latec worse; the workshop was attacked by redundant workers and the supporters of the PA. As a result the workshop was closed and the applicant and other senior staff members were forced to leave the company.
The applicant stated that Mr Wettasinghe was able to suppress police and other investigations into the actions of his bodyguards. The applicant claimed that Mr Wettasinghe boasted to he and other senior managers that he had been able to stop opposition to his activities by bribing senior people in the government and the opposition.
The applicant claimed that Mr Wettasinghe established ties with the new government and continued to arrange business deals with the government. The applicant learned about those deals through the media. The applicant stated there was criticism in the media about these business arrangements but the politicians who Mr Wettasinghe had bribed took no notice. The applicant claimed that because of his frustration with Mr Wettasinghe's behaviour he began to speak about his knowledge of this behaviour to colleagues in Kenya who were also from Sri Lanka.
The applicant claimed that Mr Wettasinghe's behaviour proved that the applicant was in danger if he returned to Sri Lanka as he was responsible for killing a person at the workshop when the applicant worked there. Further, it was alleged that Mr Wettasinghe was a close friend of the President and thus anything could happen to the applicant if he were to return to Sri Lanka. The government would not protect him because top politicians including the President dealt violently with people who were a threat to their image and Mr Wettasinghe looked after the President's financial interests. The applicant stated he could not expect protection from the Sri Lankan authorities whilst the PA government were in power.
The Tribunal hearing
The RRT asked the applicant what information he had about events at the time (in 1995 and prior to) which had not been in the public domain. The applicant said that when Mr Wettasinghe had purchased Latec he bought a large workshop which had sophisticated expensive equipment. He had sold this equipment to India. The equipment had been exported secretly. The applicant said that the sale of the equipment was public knowledge although it was not public that it had been sold to India. The applicant said this equipment had been needed to maintain the vehicles. After he bought Latec, Mr Wettasinghe had put up the price of servicing the vehicles by 300 to 400 per cent. The applicant said that some people who had worked for Mr Wettasinghe had disappeared. He showed the Tribunal a photograph of a man who was Mr Wettasinghe's driver who had been hanged.
The Tribunal noted to the applicant that it was having difficulty fitting his claims under the Refugees Convention. The Tribunal noted that if Mr Wettasinghe did want to harm the applicant it appeared that he was not motivated to do so for a Convention reason, but because the applicant as an individual possessed information which might damage Mr Wettasinghe. The applicant's adviser said that the applicant belonged to a particular social group of well recognised people in the automotive industry and he was at risk of harm because of his membership of that group. The Tribunal agreed to the adviser's request to prepare a further submission. That submission, the Tribunal noted was to “help me [the Tribunal member] to identify something which might bring you under the Convention”.
On 28 October 2002 the Tribunal received that submission. The adviser stated that the applicant was one of the very few employees who knew about violent methods used to silence those who were opposed to Mr Wettasinghe and that politicians had been bribed and the government had been overcharged for maintenance and repairs. The adviser submitted that if that information became public both the government and Latec were at risk and the applicant's knowledge of those matters was therefore perceived by Mr Wettasinghe to be a threat to him.
It was submitted that the applicant belonged to a particular social group comprised of "former high ranking employees of Latec" and that he was vulnerable to harm because of his membership of that group. The adviser submitted that the knowledge about the corrupt activities of Latec was the common characteristic of the members of the particular social group comprised of "former high ranking employees of Latec". The adviser submitted that because Latec was a high profile company former high ranking employees would be a cognisable group to society at large. The adviser submitted that the applicant had been denied employment and forced to leave Sri Lanka because of his membership of a particular social group.
The reasons of the RRT
The Tribunal affirmed the decision not to grant Protection visas. The Tribunal was not satisfied that the first named applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. Accordingly the applicant's wife and children could not be granted a Protection visa. The Tribunal noted that a Convention reason or reasons had to constitute at least the essential and significant motivation for the persecution feared by the applicant.
The Tribunal member indicated to the applicant that she had read the Department’s file and read the information provided by the applicant to the Tribunal in addition to recently provided information by the adviser of the applicant. Country Information was also available to the Tribunal as was the oral evidence of the applicant.
In general terms the Tribunal accepted the evidence given by the applicant. However:
a)the Tribunal was not satisfied that the applicant was perceived by Mr Wettasinghe or by anyone else to be a threat because of the information he gained while employed by Latec;
b)the Tribunal was not satisfied on the evidence submitted by the applicant that Mr Wettasinghe or the Sri Lankan government or any other person or group attempted to harm the applicant because he mentioned his knowledge of events at Latec and five years previously at an official function at the Sri Lankan High Commissioner's residence in Kenya;
c)the Tribunal did not accept that the applicant was denied the right to earn a living or employment in his field of expertise because of his knowledge of corrupt practices which had taken place at Latec;
d)the Tribunal did not accept that even if Mr Wettasinghe was aware of the information held by the applicant and was worried that the information would be damaging to Mr Wettasinghe, Latec and the government if revealed by the applicant, that any harm that Mr Wettasinghe might do to the applicant would be for a Convention reason;
e)the Tribunal did not accept that if Mr Wettasinghe were to harm the applicant it would be by reason of his membership of the particular social group postulated by the applicant's adviser, namely "former high ranking employees of Latec" or that Mr Wettasinghe would be motivated to harm the applicant because he perceived him to be a member of such a group;
f)the Tribunal found that if Mr Wettasinghe was motivated to harm the applicant because of his comments at the function in Kenya his motivation to harm the applicant would be because of the applicant's actions as an individual and not because he belonged to a particular social group or for any other Convention reason;
g)the Tribunal did not accept that Mr Wettasinghe believed that the applicant had a political opinion supportive of the UNP because of his wife's friendship with the wife of a UNP official or that he was motivated to harm him for this reason;
h)the Tribunal found that there was not a real chance that the Sri Lankan authorities would harm the applicant because of his knowledge of Mr Wettasinghe's corrupt relationship with politicians from both major parties;
i)the Tribunal found that the applicant had not been harmed in the past for a Convention reason and that there was not a real chance that he would be harmed for a Convention reason if he were to return to Sri Lanka now or in the reasonably foreseeable future. The Tribunal found that the applicant's fears were not well-founded;
j)the Tribunal noted that the UNP became the leading party in the coalition government which was formed following the election held on 5 December 2001. The applicant had stated in his Protection visa application that the defeat of the PA government would create conditions more conducive to enabling him to return to Sri Lanka.
In dealing with the applicant’s claims the following extracts of what the Tribunal member put to the applicant in particular highlight the approach of the RRT:
What I am trying to come to grips with here is, you know, an assessment of really whether Mr Wettasinghe would be very worried about you whether your - whether your fear that he does feel threatened by you and would therefore take action against you is a well founded fear. And why I am having a bit of difficulty thinking that it is well founded is because you didn't do anything, you know, back in 1994, 1995 to expose his examples of corruption and as you say this period of time has passed so even if it is all still too true it is not quite as sort of real or as important as it may have been if it was closer to what happened at that time. And if you didn't do it then, why would you do it now? (page 19 of the transcript).
And further:
I am still having some difficulty understanding why Mr Wettasinghe would consider you to be such a threat. I mean even if you told - even if you went to the papers and said what you knew, I mean it is pretty much similar things to all the various other allegations which have been made in the past and the things which have been exposed and why would it matter? (page 21 of the transcript)
And further (at page 21 of the transcript):
So who are you saying - is it the government officials who would be worried? The government people who would be worried or Mr Wettasinghe?
And further:
See what I am also trying to do is to relate your claims to the Refugees Convention and look at why it was that you might be persecuted if you were to go back, and you know and, you know, I went through those five reasons at the beginning which is obviously not your race and it is not your religion and it is not your nationality and it is not really your own political opinion that you are being persecuted for because the only area that you come into is that you belong to a particular group or class of people.
And I am not quite sure what particular group or class of people you might belong to, I mean, one suggestion is that you might belong to people who are 'whistleblowers' - who expose corruption and there have been some cases of that in the past. But the difficulty with you is that in your case you haven't actually exposed any corruption. And, you know, given that your history of not doing it, there is probably not much grounds for thinking that you would in the future (at pages 22-23 of the transcript).
And later as to particular social group:
I mean is this the convention ground we are looking at here?
To which the applicant’s adviser responded:
Yes. And in his case. He is a professional. Very recognised within the Sri Lankan motor industry and who knew about the corruption involved with this - the major transport authority and… he belongs to the particular social group of persons who are interested in the welfare of common masses in Sri Lanka (page 23 of the transcript).
The adviser then suggested the social group that the applicant was a member of was the Institution of Automotive Industry.
The Tribunal later went on to say:
The difficulty in the applicant's case is that he is really not a whistleblower.
The Tribunal indicated that it did not want to in any way discredit the claims of the applicant and saw no reason why it should not believe what he had said. This however followed the Tribunal commenting that it required the adviser of the applicant to stick to what really happened and make his claims on that basis rather than trying to expand it beyond what it was.
Consideration
The applicant submitted that the Tribunal focussed on whether he came within the Convention definition on the basis of being a member of a particular social group. The applicant submitted that the Tribunal did not consider the position of the primary applicant as an individual being subject to persecution because of political opinion. It therefore erred in law because it did not consider the real issue for determination, namely, whether the circumstances of the applicant and the potential exposure of corruption or whistle blowing gave rise to a well-founded fear of persecution on the basis of political opinion.
It is clear that the Tribunal did not in its decision directly consider the applicant's claim on the basis of political opinion. However, I reject the submission that the Tribunal failed to deal with this issue. It is clear from the transcript of the Tribunal hearing that the Tribunal was having difficulty in seeing how the applicant's claim fell within the Convention. The Tribunal was alive to the issue of “whistleblowers” and how the exposure of corruption may be Convention related. The Tribunal considered this and concluded the applicant had not exposed corruption in any meaningful way. The Tribunal itself considered the other grounds of the Convention before moving to the ground of particular social group and the then discussion between the Tribunal and applicant’s adviser as to the type of social group which the applicant claimed to belong to and/or indeed may belong to. I reject the submission that the Tribunal focussed the hearing only on the “particular social group” issue.
On a fair reading of the case, the Tribunal did deal with the issue of political opinion imputed or actual. It made findings in relation to factual matters put before it and concluded that the applicant had not been harmed for a Convention reason and nor was there a real chance that he would be harmed for a Convention reason. The Tribunal in its conclusions did not confine itself to the “particular social group” ground. The Tribunal was not satisfied that Mr Wettasinghe or anyone else or the government perceived the applicant as a threat because of the information he had gained at Latec. It was not satisfied that Mr Wettasinghe or the Sri Lankan government or any other person or group attempted to harm the applicant because he had mentioned his knowledge of the events at Latec some five years previously in Kenya.
The Tribunal did not accept that if Mr Wettasinghe harmed the applicant it would be for a reason which came under the Refugees Convention. It found that if Mr Wettasinghe were motivated to harm the applicant it would be because of the actions of the applicant as an individual and not because he belonged to a particular social group or for any other Convention reason.
The Tribunal considered the applicant's claim that the Sri Lankan government had attempted to harm him indirectly through Mr Wettasinghe however concluded there was no evidence that the applicant was of interest to the Sri Lankan authorities. It found there was not a real chance that the authorities would harm him.
The evidence before the Tribunal was the same regardless of which Convention ground the applicant tried to assert. I accept the respondent’s submissions that the Tribunal did not misunderstand the applicant's claim and that the applicant did not present his case on the basis of separate evidentiary claims under different Convention grounds. The Tribunal found there was no nexus to any Convention reason which was a finding open to it on the material and evidence before it.
A critical issue will always be whether there is a causal nexus between the actual or perceived political opinion said to have been manifested by the exposure of corruption and the well-founded fear of persecution: see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 240, 268 and 284. In each case the question of whether the nexus has been established is a question of fact for the RRT (per Merkel J in Zheng v Minister for Immigration and Multicultural Affairs [2000] FCA 670 at 33 and 34).
I shall dismiss the application and order the applicants pay the costs of the respondent.
I, Sophie Killen, certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 27 February, 2004
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