MZWDX v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1094

FEDERAL COURT OF AUSTRALIA

MZWDX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1094

MZWDX v Minister for Immigration [2004] FMCA 881 cited.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited.

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

VID 1535 OF 2004

SUNDBERG J
11 AUGUST 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1535 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWDX
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	11 AUGUST 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 1535 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWDX
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	SUNDBERG J
DATE:	11 AUGUST 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant appeals from a decision of the Federal Magistrates Court: MZWDX v Minister for Immigration [2004] FMCA 881. (Pursuant to s 25(1A) of the Federal Court of Australia Act 1974 (Cth), Black CJ determined that the appellate jurisdiction of the Court should be exercised by a single judge rather than a Full Court.)  The learned magistrate upheld the Refugee Review Tribunal’s decision to affirm the refusal of the Minister’s delegate to grant the appellant a protection visa.

2. I will not rehearse the bases of the appellant’s claims for a protection visa nor his evidence before the Tribunal in support of the same.  The Tribunal’s findings are sufficiently summarised in the learned magistrate’s decision.

3. There are five grounds of appeal.

   ·First, the learned magistrate should have found that the Tribunal had failed to adequately deal with the appellant’s discrete claim that he was at risk of persecution in his home country, Sri Lanka, because he was a member of a particular social group: namely, young Tamil men.

   ·Second, the learned magistrate should have found that the Tribunal had failed to give adequate regard to an earlier decision of the Tribunal that was favourable to, and relied upon by, the appellant.

   ·Third, the learned magistrate should not have found that the failure to have regard to the earlier decision would not have altered the outcome of the appellant’s case.

   ·Fourth, that the failure to have regard to the earlier decision denied the appellant an opportunity to be heard on whether (a) he had a legitimate expectation that the Tribunal would follow the earlier decision and/or (b) the Tribunal should have followed the earlier decision.

   ·Fifth, the learned magistrate mischaracterised part of the Tribunal’s findings in such a way as to preclude him from examining whether certain of the Tribunal’s findings were in error: namely, its findings as to (a) the risk to the appellant posed by the Liberation Tigers of Tamil Eelam (“the LTTE”) and/or (b) whether the appellant could safely relocate within Sri Lanka to avoid that risk.

4. Counsel for the appellant collapsed these five grounds of appeal into three issues.  First, the appellant’s membership of a particular social group ‑ the first ground of appeal.  Secondly, the Tribunal’s earlier decision ‑ the second, third and fourth grounds of appeal.  Thirdly, the alleged mischaracterisation of part of the Tribunal’s findings ‑ the fifth ground of appeal.  Counsel for the respondent also adopted this structure.  So will I.

   MEMBERSHIP OF PARTICULAR SOCIAL GROUP

5. At [11] the learned magistrate stated that:

   “The applicant argues that the RRT has not gone on to consider whether or not he is at risk in a convention sense simply because he is a young Tamil male, even though the authorities may not have a specific interest in him personally.”

   At [13] he quoted at length from the Tribunal’s reasons.  At [14] he found that:

   “It is clear that the RRT member specifically considered the claim on both basis (a personal interest in the applicant and persecution of young Tamil men) before making his general conclusion that he was not satisfied that the applicant now faced a real chance of further serious harm from the authorities.”

6. I agree with the learned magistrate.  It is beside the point that the relevant part of the Tribunal’s reasons made no specific reference to young Tamil men.  The Tribunal made two findings in that part of its reasons quoted at [13] by the learned magistrate.  First, that “there has been nothing in the behaviour or profile of the applicant since that time which would create any adverse interest in him since he last left Sri Lanka”.  Second, that the authorities’ treatment of Tamils generally had substantially improved in recent years ‑ to the point where the Tribunal refused to accept the appellant’s “assertion … that the authorities currently secretly arrests innocent Tamils and tortures them, or that such treatment is supported or condoned by the Government”.

7. The respondent submitted that the former finding’s reference to the applicant’s “profile” may be read as a reference to the applicant’s circumstances, including his age and ethnicity.  However, I am reluctant to so hold as the word “profile” is qualified by the phrase “since that time”.  The phrase “since that time” cannot be reconciled with a construction of the word “profile” as connoting a consideration by the Tribunal of the appellant’s youth as a factor that, along with his ethnicity, would make him prone to persecution.

8. The respondent also submitted that the latter finding’s reference to Tamils generally was sufficient to dispose of the appellant’s discrete claim.  I agree.  It is artificial to suggest that, having found that Tamils generally are nowadays not prone to persecution simply because they are Tamils, the Tribunal did not, at the same time, consider whether a

   
   

   sub-group of Tamils as amorphous as that of young men who have not otherwise attracted the specific interest of the authorities nonetheless was.  Such a suggestion involves the drawing of a distinction without a difference.  Further, it ignores what the High Court said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 about the manner in which courts should approach the reasons of administrative decision‑makers such as the Tribunal.

   TRIBUNAL’S EARLIER DECISION

9. The learned magistrate’s consideration of this issue can be found at [50]‑[55] of his reasons.

10. Counsel for the appellant submitted that the Tribunal’s failure to deal with the earlier decision amounted to a failure to take into account a relevant consideration.  I cannot agree with that submission.  That submission erroneously posits the existence of the earlier decision favourable to, and relied upon by, the appellant as the relevant consideration.

11. Rather, the earlier decision is simply the means by which the real relevant consideration arises.  The real relevant consideration is the present state of the peace process between the Sri Lankan Government and the LTTE.  The aspect of the earlier decision that the appellant fastens on is its finding that an elderly Tamil woman was at risk of persecution in Sri Lanka ‑ partly because the peace process had “broken down”.  By contrast, the Tribunal in the instant decision stated that:

    “Whilst that process has had a variable history in terms of setbacks, including recent difficulties such as those referred to by the applicant in his post hearing submission and supporting materials, it nevertheless continues to exist.”

    That comment alone explains why it cannot be said that the Tribunal failed to take into account the real relevant consideration.  (Further, even though it was not specifically referred to in the Tribunal’s reasons, it should be noted that the earlier decision was included in the “post hearing submission and supporting materials” referred to in the passage quoted above.)  Therefore, the second ground of appeal is not made out.

12. In coming to the earlier decision and the instant decision, the Tribunal in each case relied on quite different country information.  Much of the country information cited in the earlier decision dates from 1998.  By contrast, one of the pieces of country information quoted at length in the instant decision - the United States Department of State Country Report on Human Rights Practices - dates from March 2003 (ie two months before the earlier decision).  It is not cited in the earlier decision.  Nor are two pieces of country information cited in the instant decision which came into being after the earlier decision.  In those circumstances, the Tribunal did not need to explain in the instant decision why it did not choose to follow the earlier decision.  Therefore, the fourth ground of appeal is not made out.

13. Even if the second and fourth grounds of appeal were made out, I would exercise my discretion to decline to allow the appeal and remit the matter to the Tribunal for reconsideration according to law.  In addition to what I have said at [12], the earlier decision concerns a person whose circumstances are readily distinguishable from those of the appellant.  The earlier decision concerned an elderly Tamil woman who had assisted the LTTE.  Further, she was too frail to look after herself, and her only child was an Australian citizen.  The instant decision concerns a young Tamil man who has not assisted the LTTE. This is sufficient to dispose of the third ground of appeal.

    MISCHARACTERISATION OF PART OF TRIBUNAL’S FINDINGS

14. The Tribunal found that if the appellant could not safely return to the LTTE controlled area in which he resided for fear of persecution at the hands of the LTTE, he could safely relocate to Colombo.  The appellant submitted that the learned magistrate failed to properly consider that finding because he mischaracterised the Tribunal’s finding as to the risk to the appellant posed by the LTTE.

15. The mischaracterisation is said to be apparent in two passages of the learned magistrate’s decision.  First, at [7] he stated that:

    “as [the applicant] had not taken an active role in LTTE activities he no longer faced a real chance of similar harm to that he had suffered in the past in LTTE controlled areas.”

    Second, at [15] he stated that:

    “the RRT member concluded that the applicant was of no real interest to the LTTE, and that given the current circumstances in the country he did not face a real chance of suffering similar harm to that which he had suffered in the past if he returned to an LTTE controlled area.”

16. The appellant submitted that what I have set out at [15] is not borne out by the Tribunal’s reasons.  I do not agree.  The Tribunal’s reasons make clear that it took the view that it was safe for the appellant to return to the LTTE controlled area.  This is notwithstanding its acknowledgment of “the possibility of further contact between [him] and the LTTE” if he returned to the LTTE controlled area.  It found that he was not a supporter of, and was never involved in, the LTTE.  More importantly, it said it:

    “is not satisfied that the applicant has developed a profile as an opponent of the LTTE, either in the North … or … in Colombo, nor does it accept that he would be perceived by the LTTE to be opposed to it”.

    Indeed, it found that he was “of no real interest” to the LTTE and, as such, was not at risk of harm for having left the LTTE controlled area.

17. In any case, the ground of appeal is misconceived.  The Tribunal found that the appellant could return safely to anywhere in Sri Lanka.  Notwithstanding that, the Tribunal also found that if the appellant could not safely return to the LTTE controlled area he could safely relocate to Colombo.  If the former finding is in error, the latter finding becomes the operative one.  Accordingly, the alleged mischaracterisation involved in the former finding could not vitiate the latter finding.

    CONCLUSION

18. The appeal must be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:             11 August 2005

Counsel for the Appellant:	P Condliffe
Solicitor for the Appellant:	Victoria Legal Aid
Counsel for the First Respondent:	S Hay
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	27 April 2005
Date of Judgment:	11 August 2005