MZWFC v Minister for Immigration
[2006] FMCA 14
•24 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWFC & ORS v MINISTER FOR IMMIGRATION | [2006] FMCA 14 |
| MIGRATION – Application for refugee visa – no error by Tribunal. |
| Migration Act 1958 (Cth) s.424A |
| Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 110 Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 |
| Applicant: | MZWFC & ORS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 373 of 2004 |
| Judgment of: | Phipps FM |
| Hearing date: | 15 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anger |
| Solicitors for the Applicant: | Sulaika Dhanapala |
| Counsel for the Respondent: | Ms Riley |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs fixed at $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 373 of 2004
| MZWFC & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are husband and wife, and daughter. They are citizens of Sri Lanka. Their applications for protection visas were refused, and the refusal was affirmed by the Refugee Review Tribunal. They apply to set aside the Tribunal's decision and for remittal for rehearing. Only the first applicant, the husband, makes specific claims under the Refugees Convention, his wife and daughter are relying on their membership of his family
Chronology
The applicants arrived in Australia on 17 June 2002. On 24 June 2002, applications for protection visas were lodged. On 13 August 2002, a delegate of the first respondent refused to grant the visas. On
23 August 2002, the applicants applied to the Tribunal for review of that decision. The Tribunal affirmed the decision not to grant protection visas on 1 March 2004. The application to the Federal Magistrates Court was filed on 14 April 2004.
The Tribunal's decision
The husband is of Tamil ethnicity. He said that his mother is Sinhalese and his father Tamil. He said that he was discriminated against because he was a Tamil. It affected his schooling and he was unable to go to university.
He applied to the relevant Sri Lankan authorities in 1992 to have his Tamil surname changed to his mother's maiden (and Sinhalese) surname. This application was successful and he was able to live and work as a Sinhalese person. He met and decided to marry his wife, who is Sinhalese. Her parents accepted that he was of Tamil ethnicity. However, her uncles, who worked for the army and police, learned about his ethnicity two weeks before the wedding and threatened to kill him if he proceeded to marry their niece.
The husband said he slept in his car the night before the wedding. The wedding ceremony took place with the security of his friends around the premises guarding them.
The husband claimed he obtained employment with a television station as a senior editor. He said he was continually criticising the Sri Lankan forces in news bulletins for their treatment of Tamils. He reported atrocities. He claimed that because of this criticism, the Sri Lankan forces investigated him and came to know that he was a Tamil. The company he worked for gave him notice.
The husband claimed that about 7 months after the wedding, his wife's uncles arranged for an armed force to raid his home. He went into hiding at his mother's home.
The Tribunal found that the husband was not a credible witness. It found his evidence incongruous in the light of independent information concerning the extent of the right to freedom of speech and press in Sri Lanka.
The Tribunal found it incongruous that the husband would have gone into hiding at his mother's place after a raid on his home. If the security forces had been searching for him, his mother's home was an obvious place for them to find him.
The Tribunal said that the husband provided inconsistent evidence to the delegate and the Tribunal in respect of his employment. In his protection visa application form, he said he was an editor. At the hearing, he described the work of the journalist. The Tribunal did not consider the husband's explanation satisfactory. The husband said he had joined the firm as an editor, that "editor" had been his professional title, but he had spent 75% of his professional time engaged in journalism.
The Tribunal considered that the applicant provided unconvincing evidence concerning the significance of his reports.
The Tribunal accepted that he had worked for a television station as an editor. It did not accept that he worked as a journalist for 75% of the time, or any proportion of the time. It did not accept that he worked as a journalist in relation to reports containing criticisms of the conduct of Sri Lankan forces. It did not accept that he was perceived to be politically supportive of the LTTE or politically opposed to the Sri Lankan security forces. It did not accept that he received threats from officers of the Sri Lankan security forces or his uncle-in-law. It did not accept that Sri Lankan security forces raided his home. It did not accept that he was hiding from the Sri Lankan security forces or that he was forced to leave his employment. It did not accept that his uncles-in-law threatened to kill him, or attempted to assault him, for reasons of his Tamil ethnicity or for reasons of an imputed political support for the LTTE in light of his Tamil ethnicity.
Consequently, the Tribunal did not accept that the husband has a genuine fear of being persecuted for reasons of political opinion or race.
The applicant's arguments
The applicant's arguments are set out in his contentions of fact and law.
The applicant argues that the Tribunal failed to consider whether the applicants were at risk of persecution because of his imputed political belief.
The Tribunal considered that the husband's claim of fear of persecution by two of his uncles-in-law and members of the Sri Lankan security forces because of his Tamil ethnicity and because of his imputed political support for the LTTE was not made out.
The Tribunal considered the claim of fear of persecution because of imputed political support for the LTTE. It rejected the claim because it rejected the evidence the applicant relied upon to establish the claim. The Tribunal rejected the husband's evidence that his wife's uncles were pursuing him, that there was a raid on his home, and that he had reported Sri Lankan atrocities against Tamils. Therefore, it did consider the claim.
There is a suggestion in the applicants’ contentions that the husband made a claim that he feared persecution by the LTTE. He has not made that claim specifically, and it cannot be inferred from what he has claimed. His claim of fear of persecution because of imputed political support for the LTTE depends upon his evidence that he reported atrocities by Sri Lankans against Tamils. If there is an inference to be drawn from this evidence, it is that the LTTE would see him as a supporter, not an opponent, and so would be unlikely to want to harm him.
The applicants’ contentions alleged that the Tribunal did not invite the applicant to comment on information that would have been the reason, or part of the reason, for affirming the decision under review contrary to s.424A of the Migration Act 1958 (Cth). This appears to be a complaint that the Tribunal did not put to the husband its various reasons for finding his evidence incongruous or otherwise rejecting his evidence. In Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 110 at [54], Sackville J. said that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A. The Tribunal put to the husband a number of the credit issues about which it made findings. Section 424A did not require it to do so.
The final matter raised is that the Tribunal did not consider the "What if I am wrong?" test. It does not need to if it has no real doubt about its findings (Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 249). The Tribunal's decision is based on findings of credibility about the various components of the husband's claim. The Tribunal expresses no doubt and was not obliged to consider the "What if I am wrong?" test.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Sherryn Kwong
Date: 24 January 2006
0
2
1