MZOAN v Minister for Immigration - [2004] FMCA 294

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZOAN v MINISTER FOR IMMIGRATION

[2004] FMCA 294

MIGRATION – Application for a Protection visa – review of a decision of the Refugee Review Tribunal – whether the material and evidence before the Tribunal raised a case of political persecution – whether applicant afforded natural justice – no reviewable error disclosed – application dismissed.

Migration Act 1958 (Cth)

Applicant VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186

Tharairasa v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 281

Pannasara v Minister for Immigration and Multicultural Affairs [2001] FCA 570
Akpata v Minister for Immigration and Multicultural Affairs [2001] FCA 402
Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 430
Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630
W104/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 771
VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559

Applicant:

MZOAN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 382 of 2003

Delivered on:

24 March 2004

Delivered at:

Melbourne

Hearing Date:

24 March 2004

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Willis

Solicitors for the Applicant:

Pro Bono Referral

Counsel for the Respondent:

Mr G. Gilbert

Solicitors for the Respondent:

Blake Dawson Waldron

ORDER

The application is dismissed.
The applicant pay the respondent's costs fixed in the sum of $6,500.00.
It is certified that this matter reasonably required the attendance of counsel as advocate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 382 of 2003

MZOAN

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an ex tempore judgment. The Court is grateful to counsel for the applicant who appears in a pro bono capacity.
On 16 April 2003 the applicant filed an application in this Court to review a decision of the Refugee Review Tribunal (the RRT). That decision is dated 28 February 2003 and was handed down on 21 March 2003. That application was amended by the applicant by the filing of amended particulars of grounds for relief on 10 September 2003.
The applicant claimed the RRT exceeded its jurisdiction and/or constructively failed to exercise jurisdiction on the basis of particulars as set out in paragraph 1 of that amended application. Further, or alternatively, the applicant argued the Tribunal 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 the particulars as set out in paragraph 2 of that amended application.
The respondent has filed a court book and written contentions of fact and law. The applicant also filed contentions of fact and law which were subsequently amended and at the hearing this day leave was granted by the Court, without objection by the respondent, to the applicant's filing of an affidavit sworn 17 February 2004.
On the hearing of the matter the applicant did not press the ground of bad faith argued by him in his contentions of fact and law. In his amended contentions the applicant alleged that the Tribunal acted with ostensible bias. The basis for that claim, it was argued, was that the Tribunal member in three other decisions, prior to the handing down of this decision, had included three passages which again appeared in these reasons in what was described as a cut and paste manner. Those passages, when I was taken to them, were passages which related to country information obtained by the Tribunal member, that country information being in respect of Sri Lanka.
Those passages objected to and which it was claimed exhibited ostensible bias were under the heading `Relevant Independent Information About Sri Lanka’ and in each of the three earlier decisions, and the decision of the Tribunal which is before the Court this day, the Tribunal member included the same independent information about Sri Lanka and the history of treatment of the Liberation Tigers of Tamil Eelam (LTTE).
That country information was historical and was going to remain always consistent. I find in an examination of the Tribunal’s reasoning no place for any concept of ostensible bias. This is a serious allegation to make and one without any foundation in this application. That country information was readily available to any person. It was not excluded for confidentiality reasons. It was of a broad nature and the reference to that independent information about Sri Lanka in any other decisions of the Tribunal member is not a matter which goes to the establishment by the applicant of jurisdictional error.

History

The applicant was born in 1957. He is a national of Sri Lanka who came to Australia on 27 March 1998 as the holder of a Student visa. He lodged an application for a Protection visa on 12 September 2000.
A delegate of the respondent refused his application on 23 November 2000. Application for review of this decision was then made to the RRT by the applicant on 28 November 2000. The applicant was legally represented throughout the review process. He attended a hearing at the Tribunal and gave oral evidence on 12 February 2003. His legal adviser was in attendance.
Prior to the hearing the applicant's legal adviser had forwarded to the Tribunal a supplementary statutory declaration, a statement by the applicant's brother whom was recognised as a refugee in Canada, and recent country information from an Internet source. In addition, reference was made to other Tribunal decisions.
No mention was made by the Tribunal of the time that had elapsed between the applicant arriving in Australia on a Student visa and his lodging of an application for a Protection visa. The extent of that time period was not part of the reasons of the Tribunal.

The legislation

Under section 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. Subsection 36(2) of the Act provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the 1951 Refugees Convention as amended by the 1967 Protocol Relating to the Status of Refugees.
Article 1A(2) of the Convention relevantly 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.
Sections 91R and 91S of the Act now qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.
At the commencement of the Tribunal's reasons the Tribunal set out that there were four key elements to the Convention definition, including and stated as the fourth key element, that an applicant's fear of persecution for a Convention reason must be a "well-founded fear”. The Tribunal member noted that that added an objective requirement to the requirement that an applicant must in fact hold such a fear. The Tribunal then went on to say:
A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention-stipulated reason. A fear is well-founded where there is a real substantial basis for it, but not if it is merely assumed or based on mere speculation. A "real chance" is one that is not remote or insubstantial or a far‑fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
The Tribunal then went on to state that whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future. The Tribunal then went on to consider the matter on that basis.
The applicant's claims were set out by the Tribunal. The Tribunal noted that it had regard to the material referred to in the delegate's decision and other material available to it from a range of sources. It referred to the application for review and associated documents and oral evidence provided to the Tribunal at the hearing on 12 February 2003.
As succinctly stated in the respondent's contentions of fact, in short the applicant said that he feared persecution from the Sri Lankan authorities because of his involvement with the LTTE in his home town of Uduvil and later in Colombo where he said that he purchased medical supplies on behalf of the LTTE. He claimed that as a result of his activities he was arrested and detained in Colombo in 1990, 1993 and 1998. He said that he had participated in protests in Australia against the Sri Lankan government. As a separate and distinct claim the applicant said that he feared persecution at the hands of the LTTE itself because he had left Uduvil without telling them, which would have angered them, and also because they believed that he was an informer. By implication the claim was that the Sri Lankan authorities were unwilling or unable to protect him from reprisals by the LTTE.

Reasoning of the Tribunal

The RRT considered relevant independent country information about Sri Lanka. The country information considered by the Tribunal is as set out in its reasons under the heading `Relevant Independent Information About Sri Lanka’ as referred to earlier herein. That country information considered included the United States Department of State Country Reports on Human Rights Practices 2000, Sri Lanka, Washington DC, February 2001 Introduction; the United Kingdom Immigration and Nationality Directorate Country Information Policy Unit Sri Lanka Assessment, London, April 2000, annex A; Department of Foreign Affairs and Trade Sri Lankan Situation Update and Treatment of Returnees Country Information Report No 35/00 20 June 2000 CX42961; Amnesty International reports for the years 1986, 1987, 1988 and 1989; Safety of Tamils in Colombo and Other Matters County Information Report 329/95, 19 December 1995 CX12970; a 1997 report by the Dutch Ministry of Foreign Affairs and other information as described by it of like type. Reports submitted by the applicant himself were also considered by the Tribunal.
The Tribunal noted that there were important elements of the applicant's evidence which led it to doubt that he had given an accurate account of his experiences and that there were parts of the account as given by the applicant which the Tribunal was unable to accept as credible. The Tribunal stated:
The matters concerned are at the heart of the applicant's claims and relate to the nature and extent of the applicant's association with the LTTE and the account of his arrests and detentions in 1990, 1993 and 1998.
The Tribunal made the following findings:
a)The applicant was a well-educated man of Tamil ethnicity who was born in Jaffna and lived in nearby Uduvil;
b)He went to Colombo at the time communal rioting erupted in 1983 and almost immediately returned home, returning to Colombo in 1986 and residing there until going to the Maldives in 1991. He then returned to Colombo for some weeks in 1993 before again returning there in 1998 and then coming to Australia. The Tribunal accepted that he was subject to routine checking which had been commonly undertaken by the authorities in Colombo and that there were times when this security regime included incidents which were understandably frightening for him;
c)The Tribunal accepted that the applicant had participated in protests in Australia against the government in Sri Lanka;
d)The Tribunal noted that its role required it to make findings of fact about applications for refugee status and to determine whether there was a real chance that an applicant would face persecution for one of the reasons in the Refugees Convention if he were to return to his country.
The Tribunal further found:
The scale of the operation which the applicant assisted in Uduvil by looking after medical supplies and patients for the LTTE was very small. The applicant may have had some role in purchasing wholesale medical supplies in Colombo, as claimed. These medical supplies may have been destined to help people with or in areas controlled by the LTTE and therefore his conduct could be a matter of concern to the authorities.
The Tribunal did not accept that the applicant had been detained in November 1990 and questioned every day, nor did it accept that the authorities had taken invoices for medical supplies or LTTE literature at the time of his arrest. It did not accept the applicant had provided information during questioning which led to the arrest of the Tamil man to whom he delivered the medical supplies. It was not satisfied that the applicant's role in purchasing medical supplies from 1987 to 1990 was known to the authorities and did not consider that the authorities would now or in the reasonably foreseeable future be concerned about what the applicant did so long ago.
The Tribunal did not accept that the applicant was arrested, detained for five weeks and released on payment of a bribe when he returned to Colombo in 1993 and again in 1998. It did not accept that the applicant was particularly suspected of association with the LTTE. Neither the letters apparently written by the applicant's parents in 1998 and 1999 and submitted by the applicant, nor the claims of the applicant's brother's statutory declaration of 10 February 2003 had weight in the Tribunal's view.
The Tribunal noted that the applicant's brother's statutory declaration did not indicate to the Tribunal member that he (the brother) obtained asylum in Canada for reasons largely connected to the applicant's profile, as was submitted was the case, and noted that the statutory declaration stated nothing of the applicant's alleged activities. It did not accept that the applicant was arrested and detained in 1990 and it did not accept that he gave information in the circumstances that he claimed about a Tamil man who was arrested. The Tribunal said it follows that it did not accept that his parents told the LTTE people in Uduvil that he was in custody because of his connection to the group.
The Tribunal did not accept, therefore, that that was a reason why the applicant would be regarded as an informer by the LTTE. It was unable to accept that the applicant's departure from Uduvil in 1986 and abandoning his work for the small clinic would be a matter which could feasibly sustain the adverse attention of the LTTE for what was then more than 15 years or that there could have been a sustained concern about such dated knowledge of LTTE facilities and the identities of some of the individuals who were treated, high profile or otherwise.
The Tribunal found not credible the claim in the applicant's brother's statutory declaration that he, the brother, had been told by the LTTE in August 2000 that the applicant was an informer. The Tribunal did not accept that the applicant's involvement in the clinic in Uduvil from 1984 to 1987; in purchasing medical supplies in Colombo between 1987 and 1990; and in receiving LTTE literature while in Colombo led him to face mistreatment either when he was living in Colombo or on his return visits in 1993 and 1998. The Tribunal then went on to say:
I will now consider whether the credible evidence before me gives rise to a well-founded fear of persecution for a Convention reason if the applicant were to return to Sri Lanka in the reasonably foreseeable future; that the applicant is Tamil and from Uduvil and went to Colombo in late 1986 and has not returned to the north since then; that he lived in the Maldives between 1991 and 1998 and returning once to Colombo in 1993 and again on his way to Australia in 1998; that he was subjected to routine checking, which has been commonly undertaken by the authorities in Colombo; that he helped out at the clinic, as he has claimed; that he may have had some role in purchasing wholesale medical supplies; and that the applicant has participated in protests here in Australia against the government in Sri Lanka.
The Tribunal accepted that the applicant could again be subjected to the kind of checking by the authorities if he returned to Sri Lanka that he had experienced in the past, although the practice had lessened over the last year with improvement in conditions and the peace negotiations. The Tribunal found there was not, however, a real chance that the applicant would be subjected to further questioning beyond the routine, nor would he be at risk of possible mistreatment whilst in custody.
The Tribunal found there was not a real chance that the applicant would face serious harm amounting to persecution because he was a Tamil, because of any associated, real or imputed political opinion or for any other reason in the Refugees Convention if he were to return to Sri Lanka. The Tribunal found his fear was not well-founded.
The Tribunal noted independent country information indicated that Tamil people without a National Identity Card could be at particular risk of coming to the attention of the authorities, but stated that the applicant had an NIC, albeit one with a Uduvil address, but that that was what he had when he was in Colombo before going to the Maldives and it did not lead him to face trouble then. He was obviously able to demonstrate his bona fides when he was checked.

Consideration

The applicant argues on two grounds. The first is that the Tribunal asked itself the wrong question in that it applied a real chance test as opposed to the proper test of a well-founded fear. The second ground complained of is that the Tribunal was in breach of the rules of natural justice in that it failed to bring to the applicant's attention certain adverse country information which it took into account in reaching its decision. They are essentially the grounds relied upon by the applicant. The bad faith argument was not pressed by the applicant. I turn firstly to the question of country information.

Denial of natural justice

The Tribunal was not obliged to provide the applicant with the country information referred to in its decision. That information was not about the applicant himself. It was about a class of persons of which the applicant was a member. It therefore fell within the exception of section 424A(3)(a) of the Act.
The applicant was of Tamil ethnicity from Sri Lanka and involved with the LTTE in some way. His adviser had submitted country information to the Tribunal, both before the Tribunal hearing and after it.
Subject to subsection 424A(3) and by virtue of subsection 424A(1), before making a decision adverse to an applicant for a Protection visa the Tribunal is obliged to give "particulars" of any information that the Tribunal considers "would be the reason, or a part of the reason" for that decision. In this circumstance the Tribunal must ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the decision and must invite him or her to comment on the information. The Tribunal is not, however, obliged to give particulars of any information of the kind described in subsection 424A(1) of the Act if the information is also of a kind described in subsection 424A(3).

In this case it is clear that the country information relied upon was not specifically about the applicant. As was said by Kenny J in Applicant VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 186 at 50:
It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant's claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal's decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, give rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information "just about" a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within paragraph 424A(3)(a) of the Act (see, for example, Tharairasa v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 281 per Carr J; Pannasara v Minister for Immigration and Multicultural Affairs [2001] FCA 570 per Carr, Lindgren and Katz JJ; Akpata v Minister for Immigration and Multicultural Affairs [2001] FCA 402 per Lachlan J; Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 430 per R.D. Nicholson J; Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630 per Mansfield J; and W104/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 771 per Lee J. Contrast VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 at 36 to 38 and 43 per Gray J).
I conclude that the exclusion in paragraph 424A(3)(a) of the Act operates in relation to country information of the type referred to by the Tribunal. It was general information concerning a class of which the applicant was a member. There is no suggestion that the applicant was mislead by the Tribunal in relation to it in any way. Some of that country information was clearly raised with the applicant during the hearing in any event.

Wrong question asked

I accept the submissions of counsel for the respondent that on a fair reading of the decision the Tribunal did not substitute a “real chance” test for that of a “well-founded” fear, and that it understood the twin concepts and the interrelationship between them. The Tribunal's obligation is to make findings of fact. Part of its role was to determine whether objectively there was a real chance that the applicant would face persecution. The Tribunal decided the matter against the applicant largely on the basis of credit. The core issue was that the underlying basis of the applicant's claim was rejected by the Tribunal. The factual findings as to past events did not depend upon the definition of "persecution" and nor did they depend on any application of the “real chance” test. They were findings of fact which were the obligation of the Tribunal and are not for this court to disturb.
Fundamentally, the Tribunal found against the applicant on the basis of credit. It asked: what had happened to the applicant? It asked: did certain events as claimed by the applicant of past persecution occur? It was implicit, if not expressed, that the applicant had subjective fear. The Tribunal's task was to determine an objective basis for a well-founded fear and as part of that test to ask itself whether there was a real chance of persecution occurring (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559 at 572). The Tribunal considered the subset of well-founded fear. It considered, firstly, the objective element and whether there was a real and substantial basis, and then secondly, whether there was a real chance. The Tribunal's findings did not accept the underlying basis of the applicant's claim.
The application accordingly must be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: T. Jones

Date: 12 May 2004