MZWEL v Minister for Immigration and Citizenship

[2007] FCA 1887

FEDERAL COURT OF AUSTRALIA

MZWEL v Minister for Immigration & Citizenship [2007] FCA 1887

IN THE MATTER OF MZWEL v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
VID 837 OF 2007

JACOBSON J
23 NOVEMBER 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	837 OF 2007

BETWEEN:

MZWEL
APPLICANT

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

Jacobson

DATE OF ORDER:

23 November 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent 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	837 OF 2007

BETWEEN:

MZWEL
APPLICANT

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	Jacobson
DATE:	23 November 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Riley FM, given on 20 June 2007.  Her Honour dismissed an application for review of a decision of the Refugee Review Tribunal signed on 20 December 2006 and handed down on 12 January 2007.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. 

2. The appellant is a citizen of Sri Lanka.  He arrived in Australia on 11 January 2002 and applied for a protection visa about two weeks later.  A delegate of the Minister refused to grant the visa on 10 May 2002.  The appellant then sought review of the delegate’s decision by a differently constituted tribunal from that which is the subject of the present proceeding.

3. The appellant sought review of the earlier Tribunal decision, and on 8 May 2006 the Federal Court quashed the decision of the Tribunal and remitted the matter to the Tribunal to determine the application according to law. 

4. The appellant appeared before the Tribunal on 11 September 2006 to give evidence, having previously been invited to attend the hearing pursuant to s 425 of the Migration Act 1958 (Cth). The appellant claimed to have a well-founded fear of persecution by reason of his race, his actual or implied political opinion and also by membership of a particular social group which was said to be as a member of his mother’s family.

5. His claims were very detailed.  In summary he claimed that he feared persecution from Tamils in Sri Lanka because his mother was Tamil and his father was Sinhalese.  He also claimed that he was involved with his mother in providing the LTTE with assistance.  He claimed that he was arrested, harmed and monitored by the police. 

6. The appellant lived for some time in London and claimed that LTTE members came to a temple where he was studying with a Hindu priest.   He also claimed that, while he was in the United Kingdom, he monitored people for a fishmonger for whom he had worked. 

7. He said he had not heard from his mother since the LTTE bomb attack on the Sri Lankan airport in July 2001.  He also said that he and his mother had to spy and do things for the LTTE, and that he would be recognised by LTTE people in Colombo if he should return to Sri Lanka.

8. The Tribunal identified a number of inconsistencies in the evidence given by the appellant in his protection visa application, and in the interview with the delegate, and at the two Tribunal hearings. 

9. The Tribunal did not accept that the appellant was involved with the LTTE.  It made this finding because of the inconsistencies in his evidence. 

10. Nor did the Tribunal accept that the appellant monitored people for the LTTE.  The Tribunal found that, in order to bolster his claims, the appellant had attempted to increase his profile with the LTTE as well as the number of times he had attended the police station.  It also found that he had, in effect, exaggerated his treatment at the hands of the police. 

11. The Tribunal also said that it did not accept that the appellant experienced any of the problems in the United Kingdom from the LTTE that he had claimed to have experienced.  This finding was based on the various inconsistencies identified in the appellant’s evidence and claims in his protection visa application. 

12. The Tribunal also took into account that the appellant had given evidence that the reason he left the United Kingdom was that he found it very expensive to live there, and that there were no real opportunities for him in that country.  

13. Nor did the Tribunal accept that the appellant’s mother worked for the LTTE, or that she was involved in the bombing of the Sri Lankan airport in July 2001.  It did not accept that she gathered information on the Sinhalese community for the LTTE.  Moreover, the Tribunal did not accept that the appellant’s mother was arrested several times a day and questioned by police, or that she was watched by the police.  All of these findings were based on the inconsistencies in the appellant’s evidence to which I have referred. 

14. As a result of these findings the Tribunal was unable to reach a state of satisfaction that the appellant would face a real chance of persecution in Sri Lanka because of his claimed membership of a particular social group.  The Tribunal referred to country information and considered that the appellant would not experience any difficulties in Sri Lanka even though his father is Sinhalese and his mother is a Tamil.  The Tribunal found that the appellant had not experienced any difficulties in the past because of his parents’ ethnicity. 

15. The Tribunal also considered the question of state protection.  It referred to country information and found that, even if the LTTE were to attempt to harm the appellant, the Sri Lankan authorities would be willing and able to offer him effective state protection. 

16. The appellant raised seven grounds of judicial review in the Federal Magistrates Court.  Riley FM dealt comprehensively with each of the grounds that were raised. 

17. The grounds of appeal before me seek to re-agitate what was argued on the judicial review application before Riley FM.  It is, therefore, convenient to state briefly the grounds raised before the Federal Magistrate and her Honour’s reasons for rejecting them.

18. The first ground was that the Tribunal did not consider the various elements of the appellant’s claims, and failed to make findings in respect of them.  The Federal Magistrate said at [14] that appellant had not specified any particular claim that he made in the Tribunal which was not considered by the Tribunal.  Her Honour said that she was unable to detect any such claim.  She was, therefore, unable to find that this ground of review was made out. 

19. The second ground of review was that the Tribunal failed to discharge its statutory obligations. The appellant added to this a claim that the Tribunal had contravened the provisions of s 424A of the Migration Act. 

20. The Minister submitted before the Federal Magistrate that a very comprehensive letter, under s 424A, had been sent to the appellant on 22 November 2006; that letter appears on p 73 of the appeal book. It sets out ten items of information which would be the reason or part of the reason for deciding that the appellant was not entitled to a protection visa. The letter invited the appellant’s comments on the enumerated items. It is unnecessary to repeat the contents of the letter, but it is sufficient to observe that the items of information were of various inconsistencies between statements made in the protection visa application, and evidence given before the two Tribunals who had heard the appellant’s application for a review of the decision of the delegate.

21. The Federal Magistrate observed at [20] that, except in relation to one item which formed the subject matter of the fourth ground of review, the appellant did not nominate any information which the Tribunal failed to include in the s 424A letter. Her Honour was unable to detect any information which the Tribunal was required to include. She therefore considered that this ground of review was not made out.

22. The third ground of review was that the finding that the appellant did not have a well- founded fear of persecution was inconsistent with the Tribunal’s approach as recorded in its reasons for decision.  The Federal Magistrate observed at [24] that these contentions disputed the factual findings of the Tribunal and therefore called for merits review.

23. Her Honour also said at [25] that insofar as the appellant suggested that there was no evidence to support the Tribunal’s finding, this did not give rise to judicial review because it was apparent that the Tribunal was not persuaded of the truth of the appellant’s claims.  The learned Federal Magistrate found that the Tribunal was entitled to disbelieve the appellant in circumstances where his claims were the subject of various inconsistencies and were otherwise considered by the Tribunal to be implausible.

24. The fourth ground of review was that the Tribunal, by not writing to the appellant and saying that the question of his ethnicity would be a reason for coming to its decision, had breached s 424A of the Act. Her Honour referred to the submissions of the Minister that the Tribunal accepted that the appellant was Sinhalese and it found that he would not experience any difficulties if he returned to Colombo, even if his father was Sinhalese and his mother is Tamil.

25. The learned Federal Magistrate found that there was no breach of s 424A because the information fell either within s 424A(3)(a) or (b). This was because the information was either independent country information or was an item of information that the appellant gave to the Tribunal. Accordingly, the Federal Magistrate’s finding was that the appellant’s ethnicity as such, was not information which fell within s 424A that the Tribunal was required to provide to the appellant to comply with the provisions of that section.

26. The fifth ground of review was that the Tribunal had addressed the wrong question by saying that mixed ethnic marriages are not uncommon in Sri Lanka.  The appellant said that the question had nothing to do with mixed marriages; rather, it was a question of his ethnicity.  However, the Federal Magistrate found at [37], that the Tribunal clearly dealt with the claim that the appellant faced difficulty because of his alleged half-Tamil ethnicity and concluded that he did not face any difficulties by reason of that fact.  The Federal Magistrate also said that the reference to mixed marriages did not advance the matter; it did not indicate that the Tribunal failed to understand the appellant’s claim.

27. The sixth ground of review was that the Tribunal failed to have regard to the latest country information with respect to the situation of Tamils in Sri Lanka.  The Federal Magistrate observed at [41] that it was true that the Tribunal referred to country information dated or assessed in March 2006, but that the decision of the Tribunal was not handed down until December 2006.  The Federal Magistrate referred to a decision of a Full Court in WADA v Minister for Immigration and Multicultural Affairs (2002) FCAFC 2002 at [40]. She said that that case is authority for the proposition that country information need not be the latest information that is actually available. It is for the Tribunal to select and rely upon such country information as it deems fit, and it is for an applicant to put such material to the Tribunal as he or she wishes.

28. The seventh and last ground of review was that the Tribunal should have posed the question with regard to the police and security forces.  The Appellant said that the question was whether he faced problems from those forces on his return to Sri Lanka. 

29. The Federal Magistrate found that the Tribunal did pose the question of whether the appellant faced any difficulty because of his Tamil ethnicity and decided that he did not.  Her Honour said that this subsumed the question of whether the appellant faced difficulty from those forces because of his Tamil ethnicity.  Her Honour also observed that the Tribunal rejected the truth of the appellant’s claims and found in any event that he would be provided with state protection.

30. The learned Federal Magistrate also referred at [46] to [49] to a contention raised by the appellant that did not form a ground of his application for review.  That ground was that Sri Lanka was said not to be able to provide effective state protection.  However, the Federal Magistrate said, at [48], that the Tribunal made a factual finding that Sri Lanka was able to provide a reasonable level of protection to its population.  She said that this finding was open to the tribunal. 

31. The notice of appeal raises two grounds.  The first is that the decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction. The second is that the decision constituted a denial of procedural fairness.  The particulars of the grounds of appeal repeat the seven grounds which were agitated by way of judicial review before the Federal Magistrate.

32. The appellant appeared before me this morning in person. He told me that he did not have sufficient money to obtain a lawyer; nevertheless, he said he was prepared to argue his case this morning.  He made two points, both of which can be stated shortly.  The first was that the position in Sri Lanka is very bad and that life is not sure for him if he returns to that country.  He said that he will be killed if he goes back to Sri Lanka.  The second point was that he is known and will be recognised.

33. The effect of what was put to me today was really a challenge to the factual findings made by the Tribunal.  As I explained, these are not matters which give rise to grounds of appeal from the Federal Magistrate’s decision.  I have carefully considered the reasons given by the Federal Magistrate.  I can see no error in the reasons given by her Honour for dismissing the application for judicial review. 

34. The claim that the decision of the Tribunal amounted to a denial of procedural fairness was not argued in those terms on the judicial review application, nevertheless, I should observe that I can see no basis for that contention. The short answer to the proposition is, as the High Court has recently stated, procedural fairness requires fair procedures and a fair hearing.  It does not dictate a fair result. 

35. It is for an applicant to point to a defect in the procedures adopted by the Tribunal. No such defect can be identified. In particular, the letter under s 424A to which I have referred, sets out comprehensively the items of information which constituted the reasons or part of the reasons for the decision. I can see no breach of s 424A as an analogue for procedural fairness in the present proceeding.

36. It follows from what I have said that the appeal must be dismissed.

37. The orders of the Court will be that the appeal be dismissed, with costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             30 November 2007

The Appellant was self-represented.
Counsel for the First Respondent:	S Moore
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	23 November 2007
Date of Judgment:	23 November 2007