MZWFF v Minister for Immigration
[2005] FMCA 797
•16 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWFF v MINISTER FOR IMMIGRATION | [2005] FMCA 797 |
| MIGRATION – Review of decision by Refugee Review Tribunal – allegation that particular country information should have been put to the applicant by the Tribunal – Tribunal’s obligations in relation to relevant information – ‘what if I am wrong?’ test – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36(2), 91R, 474, 475A |
| Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666 Craig v South Australia (1995) 184 CLR 163 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 Muin v Refugee Review Tribunal (2002) 190 ALR 601 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 Minster for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57 |
| Applicant: | MZWFF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 382 of 2004 |
| Judgment of: | Connolly FM |
| Hearing date: | 19 April 2005 |
| Date of Last Submission: | 19 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 16 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Bonnici |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondent: | Mr W.S. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the applicant’s application filed 16 April 2004 be dismissed.
That the applicant pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 382 of 2004
| MZWFF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
16 April 2004 seeking judicial review of the decision of the Refugee Review Tribunal on 1 March 2004 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa to the applicant.
The history
The applicant is a citizen of Sri Lanka. He arrived in Australia on
4 March 2002 and lodged an application for a protection (class XA) visa on 28 March 2002, pursuant to the Migration Act 1958 (Cth) (“the Migration Act”).
On 21 May 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant the protection visa. The applicant applied for review of that decision by the Refugee Review Tribunal (‘the Tribunal’) on 18 June 2002.
The applicant claimed that he could not return to Sri Lanka as he has a well-founded fear of persecution due to his political opinion or imputed political opinion. According to the applicant, his fears stemmed from his high-level involvement with the People’s Alliance (‘PA’)/Sri Lanka Freedom Party (‘SLFP’); this involvement included attending political functions and party meetings, assisting a member of Parliament and participating in election activities in his local electorate. As a result, the applicant claimed that he was the victim of several threats, including threats made by United National Party (‘UNP’) members. These threats included death threats. The applicant further claimed that he received little police support once the UNP was elected, with none of his complaints receiving adequate attention. The applicant left Sri Lanka after an incident in which the applicant claimed that he was assaulted with an iron bar by two unidentified men.
In the decision made by the Tribunal on 1 March 2004, the Tribunal affirmed the decision of the delegate not to grant the protection visa. The Tribunal found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol); consequently the applicant did not satisfy the criterion under section 36(2) of the Migration Act for the purpose of a protection visa. Specifically, the Tribunal:
a)generally accepted the applicant’s story but found it unconvincing “on some important details” [Courtbook (‘CB’) 204];
b)found it improbable that the applicant would continue to carry on his business and support the PA party if he had feared for his safety or the safety of his family;
c)determined that any past alleged threats or harm suffered by the applicant did not create a “a real chance of persecution in the reasonably foreseeable future” [CB 206] or was not politically motivated;
d)did not accept that the applicant believed his life was in danger as he had delayed leaving Sri Lanka for two months after he was granted a valid visa to enter Australia;
e)held that, even if there was an escalation in fighting between PA and UNP supporters, the applicant would not be at risk if he returned to his home country; the Tribunal further stated that he could return to his village, continue to operate his business and support the PA party “without facing a real chance of persecution in the foreseeable future” [CB 208]; and
f)found that, in the rare chance the applicant did face threats on his return to Sri Lanka, there would be effective protection by the Sri Lankan police and legal system.
On 16 April 2004, the applicant lodged an application in this Court, being MZ 382 of 2004, pursuant to 475A of the Migration Act and section 39B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The applicant’s contentions of fact and law were filed on 26 July 2004. These documents claimed that the Tribunal had made a jurisdictional error:
a)by denying the applicant procedural fairness by relying on country information “without actively considering it in the light of materials submitted by the applicant”;
b)by not considering the applicant’s information submitted pursuant to section 424A of the Migration Act, thus breaching section 424(1) of the Migration Act;
c)by failing to “give proper, genuine and realistic consideration to the merits of the application”, thereby failing to exercise its jurisdiction;
d)by drawing adverse inferences about the applicant’s credibility due to an error in the translation of police reports submitted as evidence;
e)by taking into account an irrelevant consideration, or failing to take into account a relevant consideration, by finding that the threats made over two years ago did not create a real chance of persecution in the reasonably foreseeable future; and
f)by failing to find on the material that the applicant faced a real chance of persecution for a Convention reason; or after reaching that conclusion, by failing to consider the possibility that its decision was not correct.
The respondent’s contentions of fact and law, which were filed on
23 September 2004, rebutted the applicant’s contentions, arguing that:
a)there was no evidence that the Tribunal had denied the applicant procedural fairness by failing to put country information before him, or had disregarded the material the applicant had submitted pursuant to section 424A of the Migration Act;
b)the Tribunal did not make any adverse findings as to the applicant’s credibility;
c)the applicant sought to challenge findings of fact which were open to the Tribunal on the material before it; and
d)it was not necessary for the Tribunal to consider the ‘what if I am wrong?’ test as it had taken into account all of the circumstances and was satisfied that the applicant would not face persecution in the reasonable foreseeable future, or would be effectively protected in the event that he did suffer threats, on his return to Sri Lanka.
The Law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions and findings
The first complaint of the applicant is to the effect that the Tribunal denied the applicant procedural fairness by failing to put country information (that is, the ‘US State Department Reports on Human Rights Practices for 2002 in relation to Sri Lanka’) to him. The applicant appears to contend that the Tribunal was obliged and failed to put that information to the applicant. He further contends that the Tribunal relied upon that document without considering it in light of the material submitted by the applicant.
First, there is no evidence that the Tribunal did not put the document, or the gravamen of it, to the applicant for comment at the hearing. Secondly, assuming there was evidence that the report, or the gravamen of it, was not put to the applicant at the hearing, the applicant does not identify how there was nevertheless an obligation to put that material to the applicant. There is no general obligation requiring a decision-maker to provide an applicant with all of the country information to which he or she refers to in a decision.
The applicant relies on the decision Minster for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57 (‘Ex parte Miah’), which does not support that proposition. McHugh and Kirby JJ in separate judgments applied the language used in Kioa v West (1985) 159 CLR 550 at 620 per Brennan J that there was an obligation to provide adverse information that was “credible, relevant and significant.” Gleeson CJ & Hayne J were of the view that the relevant, express provisions of the Act provided an exhaustive statement of the relevant obligations.
In Muin v Refugee Review Tribunal (2002) 190 ALR 601 the High Court considered a case stated upon an agreed statement of facts. Relevantly, there had been a Department of Foreign Affairs and Trade (‘DFAT’) cable provided to the decision-maker which squarely raised, adversely to the applicant, the central issue in the application, namely the status of Chinese Indonesians in their country of origin. The applicant was unaware of that information. Gleeson CJ at [3] referred to “relevant and significant material”. Gaudron J reasoned at [64] that the applicant had not been accorded a reasonable opportunity to answer material “which suggested that he was not a refugee.” Both McHugh and Kirby JJ in separate judgments again adopted the language they had previously used in Ex parte Miah. Hayne J reasoned that there was no obligation to provide the information because it did not raise a new issue and because it was “notorious”. Callinan J reasoned at [300]-[301] that there was no obligation to provide the information as to do so would merely disclose the decision-maker’s process of reasoning.
Nevertheless even if it could be said that the High Court authorities establish a general obligation to provide to a visa applicant all country information referred to in a decision, no such obligation was identified by the applicant in this case. The country information was in the nature of general background information about the situation in Sri Lanka. The Tribunal’s findings and reasons disclose that the extract of country information was not “relevant or significant” to the Tribunal’s decision. Indeed the applicant does not identify how the information is said to be relevant or significant to the Tribunal’s decision. Nor is there any evidence that the report contained information of which the applicant was unaware.
The applicant does not identify how any alleged failure by the Tribunal resulted in any practical unfairness to him. Furthermore, to the extent that the applicant contends the Tribunal failed to consider material he provided to the Tribunal, there is no evidence to support that contention either.
The applicant contended that the Tribunal obtained the information from DFAT relating to the businesses and land owned by the applicant and invited the applicant in the section 424A letter to comment on that information. The applicant further contends that the Tribunal failed to deal with and completely disregarded the information which he provided in response to the section 424A letter. However there is no evidence to support that proposition. In fact, the Tribunal ultimately accepted the applicant’s claim that he was managing director of the family business. On any view, the information to which the Tribunal referred in the section 424A letter was not a reason or part of a reason for the Tribunal’s decision.
The applicant then seeks to challenge the credibility findings made by the Tribunal. He refers to a single sentence in the Tribunal’s reasons, where the Tribunal stated that “it raised the issue” that the complaints made to the police by the applicant about the threatening letters and the “gate and lorry damage” “seemed to be made at the same time on the page and paragraph in the police notebook”. The respondent’s contention was that the Tribunal made no general adverse credibility findings against the applicant. I accepted that contention as the Tribunal largely accepted the applicant’s claims as to what happened to him in Sri Lanka. At best, it found however that his conduct was not consistent with someone who claimed to fear for his life, as the applicant had claimed. The Tribunal certainly did not make any adverse credibility finding because of a perception by it at the hearing, still less a finding in its reasons, about the timing of the complaints to the police.
A finding on credibility is a finding of fact. To the extent that such a finding was made in the present case, it was clearly open to the Tribunal on the material.
Similarly, the applicant contended that where the Tribunal expressed some surprise as to the claimed absence of any harm suffered by the applicant as a result of his involvement in the 1994 election campaign, it was consistent with the material before the Tribunal. The applicant again, however, fails to demonstrate how that observation was relevant to the consideration of the applicant’s claims or, more significantly, how any such observation was at all material to the Tribunal’s reasons.
The applicant further contends that certain findings about politically-motivated threats were inconsistent with other parts of the evidence. This is simply an attempt to engage in merits review and discloses no error.
The final matter contended by the applicant is that the Tribunal failed to consider the possibility that its findings of fact may have been wrong. I am satisfied that the findings of the Tribunal were not clouded by sufficient doubt to warrant the kind of speculation contemplated by the Court in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559. In Applicant A233 of 2003 v Refugee Review Tribunal [2004] FCA 666, Selway J observed at [23]-[24] in respect to the phrase “what if I am wrong?”:
However, there is no jurisdictional requirement that the Tribunal answer that question. Not surprisingly it usually does not do so expressly and did not do so in this case. What it is required to do is take all relevant circumstances into account (including whatever doubts and contingencies the Tribunal has in relation to any facts) in determining whether it is satisfied that there is a real chance of persecution for a Convention reason.
Nor is the Tribunal required to reach any particular degree of satisfaction in relation to any facts that are not ‘indispensable’ to its ultimate conclusion, even if those facts are to be taken into account in reaching that conclusion: see Velevski v R (2002) 187 ALR 233, 244-245 [43]-[44] per Gleeson CJ and Hayne J.
The Tribunal expressed no doubt that the applicant “could return to his village and conduct his business more than two years after the election.” It was also satisfied that he could “continue to support the PA without facing a real chance of persecution in the reasonably foreseeable future” [CB 206].
For all of the above reasons, the application should be dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: J. O’Brien
Date: 16 June 2005
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