MZPAL v Minister for Immigration
[2004] FMCA 229
•6 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZPAL v MINISTER FOR IMMIGRATION | [2004] FMCA 229 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal affirming a decision not to grant a protection visa – whether fear of persecution for convention purposes – whether the Tribunal failed to draw any nexus between the findings regarding the applicant’s detention and interrogation – whether the Tribunal failed to consider his claims relating to the threat to ruin his business – whether section 416 of the Migration Act applies in relation to the first Tribunal proceedings – construction of the wording “is not required to consider” of section 416(c) – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.416, 416(c), 416(d)
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 197 ALR 389
Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24
Li Shi Ping v Minister for Local Government and Ethnic Affairs (1994) 35 ALD 225
Plaintiffs S157/2002 v the Commonwealth (2003) 95 ALR 24
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1
Singh v Minister for Immigration and Multicultural and Indigenous Affairs (1997) FCA 809
| Applicant: | MZPAL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 548 of 2003 |
| Delivered on: | 6 May 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 14 April 2004 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | Aravindan Barristers & Solicitors |
| Counsel for the Respondent: | Miss Moore |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
THAT the Application be dismissed.
THAT the Applicant pay the Respondent’s costs fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 548 of 2003
| MZPAL |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed 26 May 2003 the applicant seeks to review a decision that the Refugee Review Tribunal (the Tribunal) made on
28 April 2003 to affirm the decision of a delegate of the respondent not to grant him a protection (class XA) visa.
Background
The applicant is a male national of Sri Lanka born on 5 May 1963 of Singhalese ethnicity who claims to be a Buddhist. He legally arrived in Australia on 17 June 1996 on a Sri Lankan passport containing a temporary business (subclass 456) valid visa for one month after arrival. He was granted an extension of stay until 31 July 1997. The applicant is married and his wife and two daughters aged 13 and 8 remain in Sri Lanka. His parents and two siblings also live in Sri Lanka.
This is the second of two protection visa applications made by him. On 30 June 1997 the applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (as it then was) and a delegate of the respondent refused that application on 16 July 1997. On 13 August 1997 the applicant applied to the Tribunal to review the decision and the Tribunal affirmed the delegate's decision on 10 September 1999. The applicant applied to the Federal Court of Australia on 7 October 1999 for a review of the Tribunal's decision. On 30 January 2001 consent orders were made by North J setting aside the Tribunal's decision of 10 September 1999 and ordering the respondent to pay the applicant's costs. The reason for the consent orders was that no claims had been provided to the respondent's delegate.
The current application
On 27 February 2001 the applicant lodged with the department a second application for a protection visa and a Statement of Claim was sent to the department. On 9 May 2001 a delegate of the respondent refused to grant the applicant a protection visa and the applicant lodged an application for a review with the Tribunal. In his application for review he indicated he had a well-founded fear of persecution if he returned to his country.
Submissions were made in writing and accompanied by copies of four letters said to be in support of the applicant's application. The applicant attended the hearing of the Tribunal on 26 March 2003 and gave evidence. His legal representative and an interpreter assisted him.
The applicant set out his claims in the application form, in the Statement of Claim, through oral evidence and through legal submissions. The Tribunal set out the applicant's claims in its Reason for Decision. It recorded that before the previous Tribunal the application had claimed:
(a)that he was a successful restaurant owner who had come into conflict with a former Minister in the United National Party (“UNP”) government,
(b)he was detained by the police, accused of being a member of the Janatha Vimukthi Peramuna (“JVP”), associating with JVP hard-core members and was held in detention for 15 months;
(c)he was a member of the Sri Lanka Freedom Party (“SLFP”), the leading party in the People’s Alliance (“PA”), the coalition that governed Sri Lanka from 1994 until recent elections;
(d)he was harassed by a UNP politician, Mr Sarathchandra Rajakaruna, because he supported the local SLFP candidate, Mr Upali Gunaratna;
(e)he was harassed in 1990-1991 because the JVP ordered businesses to close and when he complied, police ordered him to re-open his restaurant;
(f)he was detained in December 1991 (later said to be March 1991) by unknown men and kept at an unspecified location until March 1992;
(g)he was questioned about his links with the SLFP and his interrogators tried to link him with the JVP;
(h)people threatened him in writing and in person and a gang of thugs came to his house in March 1992;
(i)he escaped, made a report to police for his future protection;
(j)after his release from detention he was harassed by police and UNP members and so went into hiding for the following four years (apart from a period when he studied Chinese cookery in a hotel school in 1996), while his wife and brother-in-law looked after the restaurant;
(k)while in hiding people came to his house searching for him and demanded money from his wife;
(l)he still feared being harassed by Mr Sarathchandra, who remained influential notwithstanding that the SLFP had come into government in 1994;
(m)he was able to raise the money to obtain a passport and visa and to escape to Australia; and
(n)after his arrival in Australia people continued to seek him out in Sri Lanka, at his home and in places where he had hidden, and threaten his protectors.
The Tribunal then summarised the claims before it from the present visa application as follows:
(a)he operated a successful eatery in a hotel, where he would hold meetings for the SLFP and party functions;
(b)he supported the SLFP although he also made some donations to the UNP;
(c)Mr Sarathchandra wanted to attack him because he believed that he had been responsible for him losing his parliamentary seat because he supported the SLFP opposition;
(d)Mr Sarathchandra orchestrated a campaign of harassment against him, making false allegations, arranging for his prolonged detention and forcing him to close his restaurant;
(e)Mr Sarathchandra began harassing him in 1992 but his thugs were behind his imprisonment in a camp in 1991;
(f)He had been detained for 15 months and was accused of associating with the JVP, which had resorted to violent measures to achieve its aims;
(g)His pleas to Mr Gunaratna and other SLFP members for help were unsuccessful and he was told by Mr Gunaratna that he could not help him because Mr Sarathchandra remained influential because he was wealthy and had good connections;
(h)He went into hiding however he had to keep moving as Mr Sarathchandra’s cronies discovered his whereabouts;
(i)He was in hiding for six or seven months before he left for Australia because supporters of Mr Sarathchandra had threatened him;
(j)He obtained a passport through friends and left Sri Lanka but, even after his departure, he was the subject of interest to Mr Sarathchandra and his supporters who threatened to persecute or kill him;
(k)He would not have left his wife and children if he had not been in fear;
(l)He did not seek permanent protection soon after he arrived in Australia because he did not know it was available, so he obtained the temporary protection offered by the class 435 visa that was available to people from Sri Lanka;
(m)Mr Sarathchandra lost his parliamentary seat in the 1994 general elections but had recently been appointed as a special Minister by the newly re-elected UNP government and was still angry with him and others who opposed him;
(n)Mr Sarathchandra is a wealthy and influential person in his area and will continue to persecute him because he contributed to his earlier political demise;
(o)He remains in fear of being the victim of unlawful action by the security forces, acting under direction from Mr Sarathchandra, and cannot rely on State authorities, including the judiciary, for protection because the system is slow and corrupt;
(p)He fears he will be killed if he is returned to Sri Lanka;
(q)He cannot go to any other place in Sri Lanka because it is a small place and he will be tracked down by Mr Sarathchandra’s thugs;
(r)He fears he will be harmed because police have implicated him with the terrorist organisation, the Tamil Tigers (LTTE);
(s)Many of his friends who had worked against Mr Sarathchandra were punished and persecuted by his henchmen after they returned to Sri Lanka; and
(t)Mr Sarathchandra was still harassing his wife and asking for his whereabouts and when he would be returning to Sri Lanka.
After setting out the applicable legal principles the Tribunal recorded its findings:
a)It accepted that the applicant was a national of Sri Lanka and that Sri Lanka was the appropriate country of reference to assess his claims to be a refugee.
b)It accepted that the applicant was held in a camp for a prolonged period in 1991-1992 as his evidence that he was interrogated about the Janatha Vimukthi Peramuna (JVP) was consistent with information about that organisation.
c)As a person who helped the SLFP (the leading opposition party to the then ruling UNP) in the early 1990s, it was plausible that the applicant was suspected of being a supporter of the JVP.
d)Any involvement in politics by the applicant was limited to offering his premises to host meetings and providing food for those who attended.
e)The applicant assisted the SLFP but also made some lesser contributions to the UNP.
f)The applicant has not participated in political processes in Sri Lanka since 1991.
g)The applicant was released in 1992 and continued to live in Sri Lanka until 1996.
h)It was not satisfied that the applicant was in hiding between 1992 and 1996 and found that he had fabricated that aspect of his claim. The Tribunal noted the applicant appeared to be a reasonably well known businessman in his area and his business continued to operate during that time.
i)It found his claim to have been in hiding between 1992 and 1996 was contradicted by his evidence he was only in hiding for the six or seven months before he left for Australia and was also at odds with his evidence that he attended a hotel school for the first six months of 1996 and that he was detained for a few hours for unknown reasons by Ganpaha police while he was in his village in 1993 but later released after a police inspector intervened on his behalf.
j)Mr Sarathchandra and other people with government connections did not have any adverse interest in him because if Mr Sarathchandra wished to harm the applicant he had ample opportunity to do so between 1992 and 1996 and did not do so, nor had he harmed the applicant's wife and children who remained in the same village since the applicant's departure in 1996. Further, the applicant's ability to obtain a passport and the consents to exit Sri Lanka that were required by local and national officials, as well as his departure through the international airport and security procedures, furnished further opportunity for Mr Sarathchandra and other people with government connections to intercept the applicant and he was not so intercepted.
k)If the applicant was in fear for his life, he would have made inquiries and taken action to ensure that he could stay permanently out of Sri Lanka and bring his family to Australia to live with him. Instead he did not seek the refugee protection in a timely fashion after he arrived in Australia.
l)It was not satisfied that the applicant faces a real chance of persecution for the reasons claimed.
m)He is not at real risk of being attacked by Mr Sarathchandra or his thugs and does not face a real chance of persecution for any other convention reason.
The applicant's grounds
The applicant relied on four grounds:
i)that the Tribunal failed to draw any nexus in its findings between the applicant's detention and interrogation and his claims;
ii)the Tribunal failed to consider his claims relating to the threat to ruin his restaurant business;
iii)thus, the Tribunal failed to consider whether he was persecuted for any other convention reason, other than that the applicant “was not at real risk of being attacked by Mr Sarathchandra or his thugs”;
iv)section 416 of the Migration Act prohibits the Tribunal from considering the evidence produced to the Tribunal in the first Tribunal proceedings.
In support of the first ground the applicant submitted that the applicant's claims were that:
a)the applicant belonged to the SLFP Freedom Party;
b)the applicant ran a business;
c)the applicant used the business to invite politicians in to discuss politics;
d)the trouble started when he supported a member of his party; and
e)the losing candidate in that particular election from the UAP whom he did not support, namely, Mr Sarathchandra, orchestrated a campaign of harassment against the applicant making false allegations and arranging for his prolonged detention and finally forcing him to close his restaurant.
This culminated, he says, in requiring him to go into hiding as he was unable to obtain police or government protection.
The argument as it was articulated at the hearing on behalf of the applicant was that the Tribunal accepted that the applicant was held in a camp for a prolonged period in 1991 to 1992 and was interrogated about the JVP.
The decision of the Tribunal considers country material which was consistent with the JVP becoming involved in escalating violence and consistent with someone who was alleged or accused of having links with the VJP being detained and interrogated. The country information satisfied the Tribunal, however, that by the 1994 parliamentarian elections the JVP had become somewhat mainstream and participated in the elections under its political pseudonym, the Sri Lanka Progressive Front (SLFP).
The applicant contended that the Tribunal had been confused about the claims of the applicant and had not properly addressed his claim. The Tribunal had, it was contended, understood his claim to have been that he was suspected of being a supporter of the JVP and had determined that as former membership of the JVP was no longer really in issue the applicant's claims were not made out. What it should have considered, the applicant contended, was that he was claiming not to have been persecuted simply because of his political membership with the JVP or because of an association with it, but rather that the persecution was because of a particular person, Mr Sarathchandra, who had a vendetta against him as a result of what he believed to have been the applicant's party in his losing the election. Mr Sarathchandra's political contentions, it was contended, were the ongoing source of the persecution and harassment to the applicant.
It is contended by the applicant that the Tribunal never addressed this and misunderstood the argument. Thus, it is contended the subsequent history of the JVP was irrelevant to the claims of the applicant. However, in my view it is clear that the Tribunal did understand the claim being put on behalf of the applicant. At Court Book page 98 the Tribunal concludes:
In the circumstances, the tribunal is not satisfied that the applicant faces a real chance of persecution for the reasons he described. He is not at real risk of being attacked by Mr Sarathchandra or his thugs, nor does he face a real chance of persecution for any other convention reason.
This passage makes it clear in my view, the tribunal understood that it was the applicant's claim that it was Mr Sarathchandra's political vendetta which was the source of the persecution being alleged and the continuing influence of Mr Sarathchandra in the political arena.
The second and third grounds relied upon by the applicant were that the tribunal failed to consider his claims relating to the restaurant business and the threats by Mr Sarathchandra to ruin his business and livelihood. The applicant contended that it was clear from the evidence that he was alleging that Mr Sarathchandra and his henchmen not only harassed him and accused him of being a member of the JVP, which caused his arrest, detention, interrogation and assault, but also threatened to ruin his business. He argued that he was required to leave his lucrative business as a result and that the tribunal had failed to consider his claims for persecution for any other convention reason.
As to this ground, however, the respondent contends that this claim was never put to the tribunal and that for the applicant to succeed on this argument he must establish a failure to respond to a substantial and clearly articulated argument relying on established facts (see Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 197 ALR 389 at paragraphs 24, 95 and 78). The respondent contends that although some of the facts which emerged related to the restaurant, it could not be said that this was the integer and the restaurant ground was not articulated (see Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 and Li Shi Ping v Minister for Local Government and Ethnic Affairs (1994) 35 ALD 225).
There is a significant difference as the respondent contends between evidence presented and the identification and articulation of a ground. The Tribunal does not have to search out and find a ground not identified before it. In this case the ground relied on by the applicant was one of persecution for political reasons by a particular member of parliament who had the personal vendetta and the restaurant ground as a separate ground was not articulated.
Furthermore, it could not be said that the facts were established facts in relation to the restaurant. A consideration of all the evidence before the tribunal indicates internal inconsistencies. At page 43 of the Court Book, in his written Statement of Claim, the applicant said:
Further, Mr Brajacaruna (in other places called Mr Sarathchandra) threatened to kill me if I do not close my restaurant. As I fear, I closed my restaurant.
Notably there is no time or date provided by the applicant for the restaurant closure. In the evidence given to the first tribunal at Court Book page 49 the applicant says that many of the employees left his restaurant as they feared for their lives and he then had to close his restaurant after threats and had to go into hiding.
In the evidence to the tribunal in the current application he said that he went into hiding while his wife and brother-in-law looked after his restaurant[1]. He told the tribunal at Court Book page 90 that the restaurant had been closed since he left. The applicant contends that the use of the words "since he left" means since he left his home to go into hiding and not when he left the country, but this was far from clear. At page 97 of the Court Book, the tribunal found that it was not satisfied the applicant was in hiding between 1992 and 1996, that it was apparent that he was a reasonably well-known businessman in the area and that his business continued to operate. On the evidence provided the Tribunal was entitled to come to that conclusion.
[1] See Court Book, page 88.
The applicant in his arguments overlooks the essential elements upon which the tribunal reached its decision. Whilst accepting the evidence of the applicant as to what had occurred to him in 1991-92, it rejected his claims to have been in hiding between 1992 and 1996 when he left for Australia and at Court Book, page 96 said:
His early claim that he was in hiding from the time of his release until 1996 was contradicted by his evidence at the hearing where he said he was only in hiding for the six or seven months before he left for Australia. It is also at odds with his evidence that he attended a hotel school for the first six months of 1996 and that he was detained for unknown reasons by Ganpaha police while he was in his village in 1993.
Thus, the tribunal was not satisfied that he was in hiding between 1992 and 1996. It concluded that he was a reasonably well-known businessman in the area and that his business continued to operate. The tribunal said:
His confused claims about when he was in hiding indicate that he has fabricated that aspect of his claim. The tribunal finds accordingly.
Mr Fernandez was critical of the Tribunal’s use of the word “confused” and submitted that if the Tribunal was of the view that it was “confused” it was a matter for it to clarify matters. He said that the Tribunal had not “ironed out the confusion” it had and in doing so had committed a jurisdictional error.
When asked by the bench what was the jurisdictional error that the Tribunal had committed, Mr Fernandez stated that the Tribunal had “not put” the matter to the applicant. By this brief statement, it is taken by the respondent that the applicant was submitting that the Tribunal breached rules of natural justice. Mr Fernandez did not elaborate on this submission. For example, he did not make any submissions, or lead any evidence in relation to the practical injustice the applicant had suffered.
Further, it is submitted by the respondent that the Tribunal’s Reasons suggest that it did put inconsistencies in the evidence in relation to his hiding to the applicant[2]. The applicant has not lead evidence to the contrary and has not attempted to show how the matter was “not put” to the Tribunal or how the Tribunal committed a jurisdictional error in relation to this aspect of his case.
[2] See Court Book 90, line 5-8.
The tribunal also found that during the four years before he came to Australia Mr Sarathchandra and his cohorts had ample opportunity to attack the applicant and that it was notable they had not harmed his wife and children who remained in the same village without his protection. They also noted that it was apparent he had some influential connections of his own and concluded that he was not at risk of being attacked by Mr Sarathchandra or his thugs, nor faced a real chance of persecution for any other convention reason.
For the applicant to succeed on this ground it was necessary that he identify whether this was put before the tribunal as an integer or claim. If so, the applicant would have to establish that it has been overlooked and then to establish it was jurisdictional error. I agree with the contentions of the respondent that this was not articulated as a ground and the tribunal was not obliged to search out and find grounds from the evidence which apparently supported the main ground that the applicant was advancing.
In Drankichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (supra), the High Court accepted the applicant’s contention that the Tribunal had misstated and failed to deal with the case presented to it and that in doing so it had failed to accord natural justice and had committed a constructive jurisdictional error. However, it is important to note that in reaching its conclusion the High Court placed significant emphasis on the need for the case to be articulated before the decision maker. On the facts before it, it found that the applicant had emphasised, referred to and relied upon material (including legal submissions) in relation to a particular definition of a social group but, despite this, the Tribunal had misunderstood and failed to deal with the claim and instead had considered a differently defined social group.
Justice Hayne (who agreed with Gummow and Callinan JJ) held at [95]
I agree that…the Refugee Review Tribunal failed to exercise its jurisdiction, and did not give the applicant natural justice in conducting its review, because it did not consider the claim which the applicant was then making, and had earlier made, for protection. (emphasis added).
Further, Kirby J said at [78]
The Full Court correctly noted the degree of latitude that would be shown to a person such as the applicant representing himself without legal assistance. It is recognised that he did not have to pick the correct Convention “label” to describe his plight. The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides relief. This Court has rejected that approach to the Tribunal’s duties. The function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances.
In reaching this conclusion His Honour relied upon the High Court’s decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 where the Court held at [8]
…The Tribunal was required to review the decision of the delegate who, in turn, had been required (by s47) to consider the application and criteria which that application had to meet, not the criteria for an application, never made, which might have been put on another basis (emphasis added).
Thus if a case is not clearly put to the Tribunal, it cannot be said not to have considered it.
In any event, the facts as now relied on by the applicant were not found by the tribunal because of the internal inconsistencies in the applicant's story.
The final ground relied upon by the applicant that the tribunal were not entitled to take into account the evidence given to the first tribunal plainly cannot succeed. The applicant relied upon s.416(c) and (d) of the Act which says:
If a non-citizen who has made an application ... makes a further application for review of an RRT reviewable decision, the tribunal in considering the further application:
(c) is not required to consider any information considered in the earlier application or an earlier application; and
(d) may have regard to and take to be correct any decision that the tribunal or the Administrative Appeals Tribunal made about because of that information.
The applicant contended that the words in subparagraph (c) "is not required to consider" means that the Tribunal is not entitled to consider any information, and if they do consider information in the earlier application or an earlier application, then they fall into error. That interpretation is plainly incorrect and the ground cannot succeed (see Singh v Minister for Immigration and Multicultural and Indigenous Affairs (1997) FCA 809, per Mansfield J).
Accordingly, the applicant has not established that the decision of the Tribunal was made without jurisdiction or affected by an error jurisdiction which would take it outside the provisions of the privative clause (see Plaintiffs S157/2002 v the Commonwealth (2003) 95 ALR 24) and thus the application must be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 6 May 2004
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