MZQAV v Minister for Immigration and Multicultural and

[2005] FCA 922

FEDERAL COURT OF AUSTRALIA

MZQAV v Minister for Immigration and Multicultural and
Indigenous Affairs [2005] FCA 922

MZQAV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 1362 OF 2004

NORTH J
31 MAY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1362 OF 2004

BETWEEN:	MZQAV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	NORTH J
DATE OF ORDER:	31 MAY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.The appellant is to pay the respondent’s costs of the appeal, save for the costs of the preparation of the respondent’s submissions.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1362 OF 2004

BETWEEN:	MZQAV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	NORTH J
DATE:	31 MAY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an appeal against the decision of Hartnett FM delivered on 19 October 2004. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 6 June 2003. The Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant the appellant a protection visa. This appeal was heard by a single judge of this Court, pursuant to a determination to that effect made by the Chief Justice pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) on 1 February 2005.

   THE APPELLANT’S CLAIMS

2. The appellant is a citizen of Sri Lanka and was born in 1964.  He is Sinhalese and Buddhist. The appellant arrived in Australia on 13 June 1996.  He claimed to fear persecution if he were returned to Sri Lanka for his perceived political support of the Liberation Tigers of Tamil Eelam (LTTE).  He claimed that in 1995 he was in business with a Tamil person, and that in March 1995 he was travelling with this person to the north of Sri Lanka.  He claimed that the lorry in which he was travelling was searched by the security forces and prohibited goods were discovered.  He claimed that he was detained and tortured, and money was demanded from him.  He said he was forced to sign a statement admitting he was involved in the transport of contraband for profit.  He said that he was detained for two months and then released. 

3. The appellant also claimed that he had to appear in court in Sri Lanka and it was alleged against him that he associated with the LTTE.  He says he was released on reporting conditions, but in fact only reported to the authorities on one or two occasions.  In October 1995, the appellant claimed that an oil installation was bombed by the LTTE and that his business partner was found dead near the bomb site.  He claimed that it was reported that his business partner had been killed by the Sri Lankan security forces.  The appellant said that, as a result, the police came to arrest him, but he went into hiding from the end of 1995 until he left for Australia. 

4. The appellant submitted three letters, allegedly written by his sister, in support of his claims.  These letters described that the authorities were still continuing to look for the appellant.  The appellant also submitted a document which he said was a court summons.  It appears to have been issued in a civil court.  In further support of his claims, he said that he could not attend his mother’s funeral in December 1998 for fear that he would be arrested on return to Sri Lanka.

   THE DECISION OF THE TRIBUNAL

5. The Tribunal analysed the evidence relating to the claimed interrogation and detention of the appellant, and concluded at 5 as follows:

   … the Tribunal does not accept that he was apprehended in March 1995, or that he encountered any of the difficulties he claims to have occurred then and in the proceeding weeks.

6. In relation to the bombing of the oil installation, the Tribunal observed that the appellant did not claim any actual involvement, and further observed that the incident was essentially a criminal matter, and any interest in him would be in accordance with an application of the general criminal law.  The Tribunal rejected the appellant’s claim that he had been in hiding at any time.

7. The Tribunal then addressed the question as to whether the appellant’s claim to be wanted by the authorities had been made out by reference to the country information, and to the appellant’s capacity to leave Sri Lanka legally.  The Tribunal referred to two pieces of country information.  The first related to the question whether Sinhalese people were generally suspected of supporting the LTTE.  It explained that the security measures impacted directly on the Tamil population.  The second piece of the country information was that there were no plausible reports that the Sinhalese part of the community was suspected by the authorities of sympathising with the LTTE.  The Tribunal said that it weighed this country information with the other evidence before it, and concluded that the appellant had fabricated his claims of being suspected of involvement with the LTTE.

8. The Tribunal then addressed the evidence contained in the letters from the appellant’s sister, and rejected the correspondence as contrived and self-serving.  It also discussed the court summons and noted deficiencies in that document.  It concluded that the court summons lacked genuineness.

   THE DECISION OF THE FEDERAL MAGISTRATE

9. Before the Federal Magistrate the appellant was legally represented. Two arguments were put to the Federal Magistrate. First, that the Tribunal fell into jurisdictional error by not addressing all of the appellant’s claims and information provided by the appellant. Second, that the Tribunal acted in breach of section 424A of the Migration Act1958 (Cth) (the Act) in its use of the country information.

10. The Federal Magistrate rejected both of these grounds. Her Honour discussed the decision of the Tribunal and held that it had addressed the claim made by the appellant of imputed political opinion as a sympathiser of the LTTE. In relation to the s 424A argument, the Federal Magistrate determined that the country information concerning the impact of security checks on the Tamil population was not a reason or part of the reason for the Tribunal affirming the decision under review. Hence, this information did not fall within the section. In relation to the second piece of country information, concerning the unlikelihood of a Sinhalese person being suspected of LTTE sympathy, the Federal Magistrate determined that this information fell within the exception in s 424A(3)(a) of the Act.

11. The Federal Magistrate then went on and came to certain other conclusions in relation to s 424A of the Act which were unnecessary in light of her primary conclusion. For instance, she said at [35] that:

    Even were section 424A to apply, the applicant did not demonstrate any denial of natural justice by the Tribunal.  In the absence of procedural unfairness a failure by the Tribunal to comply with subsection 424A(2) does not constitute a jurisdictional error…

12. This conclusion cannot now be upheld in light of the recent decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24.

    THE GROUNDS OF APPEAL

13. The appellant’s notice of appeal was handwritten and filed by himself.  The grounds are as follows:

    RRT failed to accord procedural fairness and breached the rule of natural justice.  RRT has asked unrelated questions and taken unrelated facts into consideration avoiding all related facts to darkness.  RRT deliberately asked wrong questions which are in no way connected with the case and arrived at wrong conclusions.  RRT failed to take all related facts into consideration putting me to unfavourable decision causing me untold hardships.

14. The appellant filed an affidavit with the notice of appeal.  The affidavit is short, and the main paragraph, namely [2], states as follows:

    I am a Sinhalese Buddhist from Colombo and undertook a secondary school education in Sri Lanka and later worked there as a wholesale and retail sales business man.  In 1995 a Tamil person joined my business activity who occasionally transported goods to the North of Sri Lanka.  In March 1995 they searched our lorry by security forces and detained and tortured and money was demanded.  I state that I was harassed by security forces that I was linked by LTTE (Liberation Tigers of Tamil Eelam).  I also state that when I was 9 years old my brother was killed, I was unable to attend my mother’s funeral when she died in December 1998 due to the fear I would be arrested on return to Sri Lanka.

15. The Court ordered that the parties file written outlines of their submissions on the appeal.  The appellant did not comply with that direction and he explained this failure to the Court on the hearing of the appeal.  He said that he was unable to find anyone to help him prepare the document.  The appellant speaks limited English and has had, and has needed, the services of a Sinhalese interpreter for the purposes of the appeal.  The respondent did prepare a written outline of submissions.  However, it appears that it may not have been served on the appellant.  Consequently, I have paid no regard to it, although a copy had been filed with the Court.

16. At the hearing of the appeal, the appellant made some very short submissions.  He said that he was frightened to return to Sri Lanka because his life was under threat there.  He repeated that he had been unable to attend his mother’s funeral for fear of returning to Sri Lanka.  It was explained to the appellant that the role of the Court was to determine whether the Federal Magistrate had erred in coming to her decision.  The appellant said that he did not have any knowledge about mistakes which the Federal Magistrate might have made.

    CONSIDERATION

17. The written grounds of appeal filed by the appellant are not particularised.  Neither the affidavit filed by the appellant nor his oral submissions suggest any error on the part of the Tribunal, save for a disagreement by the appellant with the factual conclusions reached by the Tribunal.  As the Federal Magistrate rightly observed, it is not the role of a court sitting on judicial review to redetermine the merits of the application. 

18. I have carefully looked at the court book and the supplementary court book in order to determine whether there is any basis for the suggestion that the Tribunal fell into jurisdictional error.  I have not been able to find any ground for reaching such a conclusion.  I agree with the Federal Magistrate’s decision in relation to the allegation that the Tribunal did not deal with the claims made by the appellant.

19. In relation to the arguments based on s 424A, in my view, it is arguable that the first piece of country information concerning the liability of the Tamil population to security checks might have been part of the reason for the Tribunal’s decision. It was placed in the balance by the Federal Magistrate to show that the appellant, as a Sinhalese, would not be likely to be susceptible to security force attention. However, that piece of country information was within the exception in s 424A(3)(a), and consequently there was no breach by the Tribunal of the section in relation to the first piece of country information. I agree with the Federal Magistrate that the second piece of country information fell within the exception in s 424A(3)(a).

20. Before leaving the appeal I should note one curiosity.  The appellant’s case had been considered at an earlier Tribunal hearing in September 1999.  Although the member at the earlier hearing came to the same overall conclusion, he differed in the path of reasoning.  It seems that the same facts were before that Tribunal member and yet he determined that the appellant might have been physically mistreated as a result of being apprehended in the lorry carrying banned goods.  Of course, the two Tribunal members were entitled to come to different conclusions about this central fact.  Minds can obviously differ in the assessment of evidence, and the mere fact of different factual conclusions does not show jurisdictional error.  Consequently, the appeal must be dismissed.

21. In relation to costs, there will be an order that the appellant pay the respondents costs of the appeal.  Those costs will not include the costs of preparation of the respondent’s written submissions.  That is because there is some doubt whether the submissions were served on the appellant.  He says he did not receive them, and the appellant is not in a position to establish that it did serve them.  Indeed, very properly, Mr Knowles, who appeared as counsel for the respondent, drew my attention at the beginning of the appeal to the lack of clarity in the records of the respondent concerning service of the submissions on the appellant. 

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:            5 July 2005

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	R Knowles
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 May 2005
Date of Judgment:	31 May 2005