MZRAE v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1503

FEDERAL COURT OF AUSTRALIA

MZRAE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1503

MZRAE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 88 OF 2005

SUNDBERG J
26 OCTOBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 88 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZRAE
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	26 OCTOBER 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be added as a respondent.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of the appeal.

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 88 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZRAE
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	SUNDBERG J
DATE:	26 OCTOBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellant appeals from a Federal Magistrate’s dismissal of her application to review the Refugee Review Tribunal’s affirmation of the Minister’s delegate’s refusal to grant her a protection visa. Pursuant to s 25(1A) of the Federal Court of Australia Act the Chief Justice directed that the appeal be heard and determined by a single judge.

2. The background facts, the appellant’s claims, the evidence before the Tribunal and its reasons are contained in its decision. Those matters are again recorded and summarised in the Magistrate’s detailed and comprehensive reasons. It is unnecessary to set out them again.

3. The Magistrate summarised the appellant’s case before her

   “as being that the Tribunal failed to identify and deal with the alleged Convention reason of political opinion imputed to the applicant by virtue of the closeness of her relationship with [her brother] Rajeswaran who, significantly, had not merely been a political operative or member of the LTTE but who died a high profile military operative of the LTTE and who, presumably, would have perpetrated or directed the execution of highly prejudicial attacks upon government forces (and be comprehended by the relevant authorities to have done so).”

4. The Magistrate concluded that the Tribunal had not fallen into the error thus alleged. Her Honour referred to parts of the Tribunal’s reasons which showed that it considered the imputed political opinion referred to. She said:

   “The decision included that at page 21 …:

   ‘I have been mindful that what she claims to have experienced in the past at the hands of the security authorities occurred when they were unaware, or later uncertain, of her family relationship to a committed LTTE member who died in the course of his involvement ….’

   It is clear that the Tribunal’s consideration in this regard was in the context of the Tribunal’s assessment of whether [the] applicant could face serious harm for a Convention reason if she were to return to Sri Lanka in the foreseeable future.

   Also at page 21, the Tribunal makes the following comments:

   ‘I note that before the ceasefire I probably would have found that there was a real chance that the applicant could face persecution on the basis of her ethnicity and an associated political opinion or because of her membership of a particular social group defined as Rajeswaran’s family’ ….”

   The Magistrate then recorded the Tribunal’s reference to newspaper articles referring to the brother (describing him as Major Kumaravel or Captain Kumaravelu) having died as a result of taking cyanide after being surrounded by the military.

5. The Magistrate concluded that the appellant’s claim to imputed political opinion based on her brother’s status in the LTTE “had been met by the Tribunal in all respects”.

6. The Magistrate then rejected the appellant’s criticism of the Tribunal for preferring country information of a general nature to the appellant’s specific allegations about her particular circumstances. Her Honour said:

   “The applicant agreed that the objective test of whether any genuinely held fear of persecution is well founded, was to be as at the date of the decision and hence, necessarily, having regard to changes that have taken place since the applicant left the country [in August 2000].

   I find that the Tribunal’s findings in this regard are to the effect that the ceasefire of 2002 effectively negated much, if not all, of the basis upon which any fear held by applicant could be realistically based. This is supported by the reference by the Tribunal to the country information which dealt with the effect of ceasefire and reservations by Amnesty International Australia as to the likely longevity of the ceasefire and, then, by the Tribunal’s observation that, prior to the ceasefire, the applicant may well have succeeded on this ground ….

   The Tribunal made a finding of fact on the evidence. I find that what the applicant seeks to attribute to the Tribunal as errors of law or jurisdiction are, in fact, criticisms of the Tribunal for failing to make the findings of fact that the applicant wanted to be made on the evidence.
   …
   I conclude that the Tribunal’s findings of fact were open to it on the materials before it.”

7. The Magistrate then dealt with the appellant’s complaint that the Tribunal did not investigate or make a finding about her claim as to why it was that she was unable to obtain a copy of her brother’s death certificate. Her Honour said:

   “The respondent contended that it was of no consequence that the Tribunal did not seek to authenticate or make a finding about the reasons why the applicant could not apply for a copy of her brother’s death certificate. It was submitted, and I accept that the Tribunal was satisfied that the authorities would recognise the link between the applicant and her deceased twin if she returned to Sri Lanka. I also accept the respondent’s submission that, given the extent to which the Tribunal accepted that the 2002 peace talks and consequent ceasefire so altered the relationship between the government and the LTTE, … it was neither necessary nor relevant for the Tribunal to make dispositive findings about the death certificate allegation.”

8. The appellant’s contentions on the appeal can be summarised as follows:

   (a)the Tribunal failed to address a central aspect of her case, in that it failed to deal with the claim that she faced a well founded fear of persecution on the ground of imputed political opinion by reason of her past and continuing profile as the sister of a deceased hero of the LTTE;

   (b)the Tribunal failed to pay sufficient regard to her assertion as to why she had been unable to obtain a copy of her brother’s death certificate, and thus effectively deprived her of an opportunity to demonstrate the jeopardy in which she would be placed if the government were able to link her with her brother, which was very much a live issue in 2000;

   (c)the Tribunal dealt with political opinion imputed to her only because she was a Tamil, and did not deal with her political profile acquired by reason of her relationship with her brother;

   (d)the Tribunal preferred country information of a general nature to her specific allegations, including in relation to the death certificate that the Tribunal failed to seek to authenticate.

9. There is no substance in complaint (a). The Tribunal was aware of the centrality of the “brother issue”. It recorded the appellant’s claim that she had been persecuted by the army first because she was of Tamil ethnicity, and second because of an imputed political opinion. This was imputed to her because of her brother’s involvement with the LTTE. See [3]. Thereafter the Tribunal referred to the brother’s activities on sixteen occasions. In reciting the applicant’s claims, it recorded:

   ·he was active in the LTTE from when he was about fifteen or sixteen

   ·the appellant’s family had problems with the armed forces because of her brother’s involvement with the LTTE

   ·after the brother’s suicide in October 1999, people in the appellant’s village learned that he was a member of her family, that what she had been saying about all her family being overseas was not true, and that this led her to feel that inquiries were being made about her

   ·in December 1999 the army searched her house and asked her about her family, including the brother

   ·the newspaper announcements of the brother’s death in October 1999, including the report that he had swallowed cyanide when surrounded by the military.

10. The Tribunal’s findings included:

    ·acceptance that the brother was with the LTTE and that he died in 1999

    ·acceptance that, when questioned by the police, the appellant did not reveal that she had a brother active in the LTTE

    ·acceptance that soon after the brother’s death, people in the appellant’s area learned that Rajeswaran was her brother, and she began to feel that enquiries were being made about her

    ·acceptance that in December 1999 the army searched the appellant’s house and asked her about her brother, and her denial of any association

    ·that the appellant’s evidence about her difficulty obtaining a death certificate for her brother was “unconvincing but this is not material to the matter”

    ·that it was not satisfied that the appellant’s family faced any actual difficulties with the authorities because of the brother’s activities with the LTTE

    ·that it was mindful that what the appellant claimed to have experienced in the past at the hands of the security authorities occurred when they were unaware or uncertain of her family relationship to a committed LTTE member who died in the course of his involvement

    ·its assumption that the relationship would become known to the authorities if the appellant came to their attention on her return

    ·before the ceasefire it would probably have found that there was a real chance of persecution on the basis of the appellant’s ethnicity and an associated political opinion or because she was a member of the brother’s family

    ·because of the ceasefire there was no more than a remote chance that the appellant would face persecution because of her ethnicity and an associated political opinion or because she was a member of the brother’s family

    ·she was never seriously suspected of associating with the LTTE although this was when her relationship to the brother was not known.

11. As appears from the foregoing, the assertion that the Tribunal failed to deal with the appellant’s imputed political opinion by reason of her brother’s activities with the LTTE is totally without foundation. See in particular the emphasised passages in the dot points at [10]. The Magistrate correctly concluded that “the appellant’s claim had been met by the Tribunal in all respects”.

12. Complaint (b) has no merit. The Tribunal did not accept the appellant’s evidence about the difficulty in obtaining a death certificate for the brother. It went on to say that this finding was not material to its determination. The Magistrate was plainly correct when she said that given the Tribunal’s finding that the 2002 peace talks and consequent ceasefire had so altered the relationship between the government and the LTTE, it was neither necessary nor relevant to make a finding about the reason why the appellant had difficulty obtaining a death certificate.

13. The emphasised passages at [10] demonstrate that there is nothing in complaint (c). See in particular the last three dot points.

14. Insofar as complaint (d) relates to the death certificate, it is covered by what I have said at [12] about the relevance of the death certificate in light of the Tribunal’s findings about the ceasefire and changed political environment. Insofar as the complaint relates to the Tribunal’s preference for country information of a general nature over the appellant’s specific allegations, I refer to what the Magistrate said (recorded at [6]), which correctly states the context in which the Tribunal relied on the country information about the ceasefire and the changed political situation consequent on the peace talks. If the Tribunal’s use of that information involved a “preference”, to use the appellant’s language, it was a preference that was open to it.

15. The appeal must be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:             26 October 2005

The appellant appeared in person.
Counsel for the Respondent:	S D Hay
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	5 October 2005
Date of Judgment:	26 October 2005