MZNAH v Minister for Immigration - [2004] FMCA 205

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZNAH & ORS v MINISTER FOR IMMIGRATION

[2004] FMCA 205

MIGRATION – Application for a protection visa – review of a decision of the Refugee Review Tribunal – no reviewable error disclosed – application dismissed.

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Judiciary Act 1903 (Cth)

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
S157/2002 v Commonwealth of Australia [2003] HCA 2
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural and Indigenous Affairs v Yusef (2001) 180 ALR 1
Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Applicants:

MZNAH, MZNAI, MZNAJ, MZNAK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ250 of 2003

Delivered on:

6 April 2004

Delivered at:

Melbourne

Hearing date:

23 March 2004

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicants:

Mr Livermore

Solicitors for the Applicants:

Ambi Associates

Counsel for the Respondent:

Mr Heerey

Solicitors for the Respondent:

Blake Dawson Waldron

ORDER

The application is dismissed.
The applicant pay the respondent’s costs as agreed and failing agreement as determined by the Court upon application made to it.
It is certified that pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ250 of 2003

MZNAH, MZNAI, MZNAJ, MZNAK

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The first applicant is a Sri Lankan citizen of Singhalese ethnicity and Catholic faith. The second, third and fourth applicants are his wife and their two sons all of whom are Sri Lankan citizens. The second applicant (the wife of the first applicant) is of Malay ethnicity and Muslim faith. The first and second applicants also have a young daughter born since their arrival in Australia.
The applicants lawfully arrived in Australia on 23 November 1998 on visitor visas. They had departed Sri Lanka on 22 November 1998 on passports issued in their own names. On 5 January 1999 the applicants lodged applications for protection visas with the respondent's department. Those applications were supported by a detailed written statement by the first applicant.
The applicants claim for refugee status is based on claimed persecution for reasons of the first applicant's political opinion and the second applicant's racial and religious background. This latter ground was never really pressed.

The applicant’s claims

The applicant's written statement described his parents as being supporters of the United National Party (UNP) whom although not actively involved in party politics as organisers, gave financial contributions to the UNP. His parents had also been strong supporters of local anti-drug and alcohol campaigners and were against child prostitution, which he claimed existed in Negombo, the city in which the applicants lived before travelling to Australia. The applicant claimed he himself became involved with the local campaign against drugs, alcohol and child prostitution and although his involvement was limited due to his work obligations, he supported the campaign and made considerable financial contribution to it.
The applicant claimed that on 15 July 1994 he formed a special committee within the local UNP branch to campaign against drugs, alcohol and child prostitution. He was responsible for speaking engagements at major public gatherings, meetings and forums. In October 1995 he formed an investigative research group into child prostitution consisting of university graduates.
In February 1996 he, with the full support of the local UNP branch, launched a poster and leaflet campaign in the Negombo area exposing the involvement of prominent government insiders in the child prostitution industry. As a result, the local population became agitated and protested against the local MP and the Sri Lankan Freedom Party (SLFP) led People's Alliance Government. He claimed thereafter that activists of the committee led by him were physically harassed and that subsequently he was stopped on his way home by four solidly-built fully blacked-dressed and masked men with revolvers who threatened him that he would be killed unless he stopped his campaign with the UNP. He claimed to immediately have proceeded to the Negombo Police Station to report the incident but, aside from noting it, the police did not take any further action.
During this period of time the applicant claimed his family had received a number of anonymous phone calls and letters demanding that he stop his political activities and, in particular, that he dissolve the UNP's committee against child prostitution. He reported these incidents to the police but the police did not carry out any thorough investigation. The applicant claimed that by early 1997 the campaign against child prostitution in Negombo had become a main part of the UNP's Negombo branch political campaign. Thus, he gradually became involved in direct and serious party politics. Thereafter, threatening phone calls were again made to his home, one received by his wife in June 1997 threatening to attack her parents unless he stopped his political activities. Again, the applicant reported this particular incident to the local police but received the same lukewarm response.
The applicant claimed that in mid-1997 the local minister and his supporters took a much more sinister approach to intimidate he and his family. They used his wife's ethnicity and religion to silence his political activities. He claimed plain-clothed police guards of the local minister attended at his parents-in-laws’ home on 2 July 1997 and told them that, as Muslims living in the Singhalese areas, they should not allow any of their relatives to interfere in local politics. They were threatened that their home would be burnt down.
In May 1998 the mayor called the applicant and invited him for a private meeting, which the applicant accepted. The applicant told the Mayor that he was aware of the rumours alleging the mayor was involved in child prostitution. The mayor requested him to cut off all contact with the UNP and its anti-child prostitution committee. Upon refusing to accept his demands, the applicant claimed the mayor openly threatened his life and stressed he would not get protection from the government or law enforcement agencies. That same evening, six masked men with automatic rifles entered the applicant's living room, four of them grabbing him and ordering him out. His wife and mother-in-law were tied to a chair and their mouths were taped and he was pushed to the front garden and severely beaten and tied to a mango tree with his mouth taped. He was threatened that this was his final warning and that he would be killed unless he stopped his political activities within the UNP local branch. He claims he was thereafter admitted to hospital where he remained for three days, and that he reported the attack to the local police station. The local police were reluctant to take action to protect the family. The family called the District Superintendent of Police, whose response was no different from the local police.
In August 1998 the applicant claimed to have received an anonymous phone call threatening to abduct his children and wife unless he stopped his political activities. During that same month a petrol bomb was thrown at his home, destroying glass windows and endangering their lives. In September 1998 the family went into hiding. On 22 September 1998 the government thugs came to his in-laws' home, attacked his wife’s parents and threatened to kill them unless they revealed his whereabouts. On 26 September 1998 a group of masked people came to his parents' home and threatened to kill his children unless he surrendered to them before the end of September. The applicant claimed that the local minister and high-profile government figures in Negombo, as well as in the Colombo bureaucracy who had some stake in the child prostitution business, were behind these operations and determined to destroy him.
On 29 September and whilst the applicants were sleeping in a visitors' cottage a few hundred metres from the applicant’s aunt's main home, a vehicle braked in front of his aunt's home and six masked men broke into the home. The family heard a number of gun shots and were frightened. They realised the message from the government politicians was that they would kill the applicant as long as he lived in Sri Lanka. During the period of 30 September 1998 to 20 November 1998 the applicant's wife and children did not step out of a convent in which they were hiding. The applicant father was himself hiding in another place in Colombo.
Throughout the period of the ongoing campaign of intimidation as alleged, the applicant continued as general manager of the family business, went on a business trip to the Maldives and returned to Sri Lanka and continued his involved in the UNP.

History of proceedings

On 17 March 1999, a delegate of the respondent rejected the applicants' applications for protection visas. The applicants appealed that decision to the Refugee Review Tribunal by an application lodged 8 April 1999. The first applicant provided written submissions to the Tribunal, which appended various newspaper clippings. The Tribunal conducted a hearing on 28 May 2001, at which the first applicant gave oral evidence. The applicant was represented by his advisers. Following the hearing and on 24 June 2001, the applicants filed a statutory declaration of Lakshman Fernando and on 5 September 2001, the applicants submitted a copy of their new daughter's birth certificate.
On 21 February 2002, the Tribunal wrote to the applicants and informed them that the member previously deciding their case was no longer available and the case had been reconstituted to another member. The letter also provided country information regarding a recent Sri Lankan election won by the UNP and invited the applicants' comments on that information by 7 March 2002. The applicants' migration agent provided a response, by letter dated 13 March 2002, enclosing a letter of the same date from the first applicant which in turn appended various Internet reports.
The Tribunal handed down its written decision dated 20 January 2003. The Tribunal affirmed the decision not to grant protection visas to the applicants.
On the 14th day of March 2003, the applicants made application for review in this Court under section 475A of the Migration Act 1958 (Commonwealth) and under section 39B of the Judiciary Act 1903 (Commonwealth). That application was amended by amended application filed 23 July 2003. The applicants claimed the Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction on the basis of particulars as set out in paragraph 1(a) to (d) of the amended application. The applicants allege the Tribunal further or in the alternative asked the wrong question, identified the wrong issue and failed to take account of relevant material and that its decision was made without jurisdiction or was affected by an error of jurisdiction on the basis of particulars as set out in paragraph 2(i)-(iii) inclusive.

The Tribunal hearing

Australia has protection obligations toward refugees. The definition is established by Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol as being a person who:
Owing to 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.
The source of power for granting or refusing a protection visa is Section 65 of the Act. Criteria to be satisfied at the time of decision are prescribed in the Migration Regulations 1994 Schedule 2 Part 866. Sections 91R and 91S of the Act qualifies some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
The Tribunal, as constituted by Ms Boland, being the Tribunal member who affirmed the decision not to grant protection visas, listened to the tape recording of the hearing wherein the applicant gave oral testimony before Ms Gould, the then Tribunal member.
At the hearing before Ms Gould, Ms Gould put to the applicant that there were major organisations in Sri Lanka working to help children who were being abused. Those organisations had taken a quite public stand on the issue and she had asked the applicant if he could tell her about those organisations given his claimed involvement. The Tribunal member put to the applicant that it surprised her that he chose to work through a political party on the issue when in fact there were other organisations which were non‑political and which would not have caused him the problems which he apparently encountered. The Tribunal member asked the applicant what the UNP, who had been in power for many years before 1994, did about the problem. The Tribunal member suggested to the applicant that as he had been involved on a UNP committee concerned with child prostitution for about four years and commissioned research, putting his security and the security of his family at some risk in his determination to eradicate the problem, that he would have a very good understanding of the situation relating to child prostitution in Sri Lanka. Thus the Tribunal hearing was engaged in putting to and eliciting from the first application information as to his knowledge of and/or involvement with and/or contact with organisations such as the National Child Prostitution Authority established in 1998. The Tribunal Member put to the applicant that the PA government established a National Child Prostitution Authority. This occurred in 1998 when the applicant was in Sri Lanka.
The Tribunal accepted that the applicant and his parents were supporters of the UNP. The Tribunal found that the applicant’s parents were ordinary supporters who showed their support through financial contributions only. It found that the applicant similarly had the same profile.
The Tribunal accepted that the applicant was concerned with social issues relevant to the area he lived in, especially child prostitution. However, it did not accept that the applicant was ever involved in any special committee as part of the UNP to deal with this issue. The Tribunal found that the applicant’s knowledge in relation to other organisations working on this issue, both at a national level and in the Negombo area, was not consistent with the applicant’s profile as one of the organisers of the UNP special committee to investigate child prostitution. The applicant was unaware of major organisations fighting against child prostitution operating at the time he was in Sri Lanka, initiatives by both UNP and PA governments to combat the child prostitution industry and protect children and the laws in relation to the offence. In particular, the applicant’s ignorance of the National Child Protection Authority established by the PA government in 1998, while the applicant was still in Sri Lanka, led the Tribunal to doubt the veracity of the applicant’s claims. The Tribunal found that the applicant’s lack of knowledge was inconsistent with his commitment to working against child prostitution for four years and commissioning investigative research about it. The Tribunal also noted the applicant’s inconsistent evidence in relation to his profile.
The Tribunal was satisfied that the applicant was not actively involved in any child prostitution campaign, including the UNP special committee. Nor did the Tribunal accept that the applicant assisted priests in the Negombo area with their campaign against child prostitution. The Tribunal noted that in the applicant’s initial statement he never mentioned that he was involved with Father Pinto, a high profile activist against child prostitution. The applicant never mentioned that he was a church worker or that he had assisted Father Pinto with research.
The Tribunal did not accept that the applicant had any active role in any campaign against child prostitution either through the church or the UNP. Given that the Tribunal found that the applicant was never involved in any UNP campaign against child prostitution or with Father Pinto or any other priest, it found that he did not participate in any investigative research of any kind which resulted in exposing prominent government Ministers, the local Mayor and local police chief. Accordingly, it did not accept that the applicant was ever of any interest to the Mayor, any Ministers or the PA government as he had claimed. The Tribunal did not accept that the applicant was threatened on 25 February 1996 by four men that if he did not stop the UNP campaign he would be killed. The Tribunal was satisfied the applicant was not active in any campaign. Nor did the Tribunal accept that the applicant’s family received anonymous calls and letters or that his wife’s family were threatened. The Tribunal did not accept that the applicant was invited by the Mayor and his life threatened and that some night intruders in his home tied his wife and mother-in-law up and assaulted him because of his activities. It also did not accept that a petrol bomb was thrown at his home and that the incident at his aunt’s home in Kandy was related to him. The Tribunal was satisfied that the applicant had no political profile.
The Tribunal found that the applicant was never of any interest to the PA and would be of no interest to the PA if he were to return to Sri Lanka. The Tribunal also noted that the UNP were then in government. Although the applicant claimed that political thuggery continued, the Tribunal found the applicant an ordinary supporter of the UNP and that he would not face a real chance of harassment or persecution because of his political opinion. The Tribunal was satisfied that the applicant did not have a well-founded fear of persecution for reason of his political opinion or any other Convention reason.
No specific Convention claims were made by or on behalf of the applicant wife or children, and there was no basis on which the Tribunal was satisfied that they were refugees. The fate of their application depended on the outcome of the first named applicant’s application. As the Tribunal found that the first named applicant did not satisfy the criteria for a protection visa the applicant wife and children were not granted a protection visa.

Consideration

Following the High Court decision in S157/2002 v Commonwealth of Australia [2003] HCA 2 I must determine whether there was an error on the part of the Tribunal which would enliven the entitlement to an order under s.39B of the Judiciary Act 1903 (Cth) notwithstanding s.474 of the Act.
On 4 February 2003 the High Court gave judgment in S157/2002 v Commonwealth of Australia [2003] HCA 2. The High Court determined that the privative clause provision is s.474(1) of the Act, properly construed, is a valid enactment. It found the proper construction of the Act, including s.474 imposed an obligation of providing a fair hearing as a limitation upon the decision-making authority: see per Gleeson CJ at (37)-(38); Gaudron, McHugh, Gummow, Kirby and Hayne JJ at (83); and per Callinan J at (160).
An administrative tribunal exceeds its power and thus commits a jurisdictional error if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion in a way that affects the exercise or purported exercise of the Tribunal's power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This list is not exhaustive. Those different kinds of error may well overlap (see Minister for Immigration & Multicultural and Indigenous Affairs v Yusef (2001) 180 ALR 1 at 21).

The Tribunal is required to consider the elements of each of the claims made by the applicant. The Tribunal is empowered to exercise all the powers and discretion that are conferred by the Act. That is, to consider a valid visa application made by an applicant and in doing so to have regard to all information required to be taken into account under the code of procedure laid down in Part 2, Div 3, Subdivision AB of the Act.
It is a matter for the Tribunal as to the probity it accords the various aspects of the evidence put before it (see Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611). The Tribunal is not required to adopt an uncritical acceptance of all and any allegations put before it by the applicant. Its function is to make findings of fact and assess the credibility of the evidence based on these factual findings.
In this case the Tribunal essentially made an adverse finding as to the credibility of the first named applicant. I find that was reasonably open to it on the evidence before it.
Section 422 of the Act explicitly provides for the reconstitution of the Tribunal in circumstances where, for any reason, the member who constitutes the Tribunal is not available for the purpose of the review. Sub-section 422(2) explicitly provides that the reconstituted Tribunal may have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. The complaint of the applicants in this regard must fail.
It is contended by the applicants that the Tribunal breached s.424A of the Act in relation to:
a)the “little bit of reading” referred to by the first in time sitting Tribunal member; and
b)the country information referred to in the reasons for the decision.
Further, that the Tribunal did not accord the applicants procedural fairness because of its failure to provide copies of such documents to the applicants and by its failure to give to the applicants adequate time to respond to questions based on such information and the identification by the Tribunal of the “critical issues” in relation to such information.
In this case however, such material was not specifically about the applicants or any one of them and thus s.424A(3)(a) is relevant. Section 424A of the Migration Act 1958 provides as follows:
“(1) Subject to subsection (3), the Tribunal must:
(a)
give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)
ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a)
except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)   if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) This section does not apply to information:
(a)
that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)
that the applicant gave for the purpose of the application; or

(c)    that is non-disclosable information.
The country information referred to by the Tribunal was relevant to UNP supporters as a class of persons and bodies or persons engaged in attempts to end child prostitution as a class of persons. The Tribunal particularised for the applicants that material. It could not be categorised as general country information. In that sense, it could fall within the exception as set out in s.424A(3)(a).
However, I conclude the Tribunal did bring to the attention of the applicants country information referred to in its decision under cover of a letter from the Tribunal to the applicants of the 21 February 2002. The applicants were asked to comment on that information. In addition, the Tribunal had earlier afforded an opportunity to the applicants to comment further on any matters they considered relevant or wished to put before the Tribunal in light of the matters canvassed with the first applicant by Ms Gould at the hearing on the 28 May 2001. Ms Gould clearly articulated to the first named applicant the source of country information which she put to him and the difficulties she had with his evidence in light of that country information and why that country information was critical and would be part of the reason, indeed a crucial element for affirming the earlier decision. At the conclusion of the hearing the Tribunal gave to the first applicant and his advisers “a copy of this country information” and allowed a further two-week period for comment by the applicants.
The critical factor upon which the decision of the Tribunal turned was its rejection of the first applicant’s evidence of his claimed involvement in a campaign against child prostitution based on his limited knowledge of government, church and other bodies involved in such campaign. All of the critical pieces of evidence were brought to the attention of the first applicant and indeed significant time was spent at the Tribunal hearing on eliciting (or attempting to elicit) information from the first applicant. Thereafter a copy of the country information referred to by the Tribunal was supplied to the first applicant. There was no element of surprise in that country information which was clearly considered by the Tribunal and the applicants were afforded an opportunity – after perusing written copies – of commenting on it. No jurisdictional error or failing to accord natural justice is apparent.
There was no other “substantial, clearly articulated argument relying upon established facts” (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26) put before the Tribunal. I find the Tribunal to have considered all matters central to its task being a proper assessment of the applicant’s case.
The Tribunal's decision is a privative clause decision for the purposes of s.474(1) of the Act.
The decision related to the subject matter of the Act and was reasonably capable of reference to the power given to the decision-maker. There was a bona fide attempt by the decision maker to exercise the power which the Act reposed in such decision maker. (See R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598).
I shall dismiss the application and order that the applicant pay the respondent’s costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: Sophie Killen

Date: 6 April 2004