MZWGN v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1557
•14 OCTOBER 2005
FEDERAL COURT OF AUSTRALIA
MZWGN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1557
MZWGN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
VID 178 of 2005
MANSFIELD J
14 OCTOBER 2005
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 178 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
MZWGN
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
MANSFIELD J
DATE OF ORDER:
14 OCTOBER 2005
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay to the respondent 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 178 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
MZWGN
APPELLANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
14 OCTOBER 2005
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
The appellant is a Sri Lankan National who came to Australia on 17 July 1998. He applied for a protection visa on 28 August 1998. That application was refused by a delegate of the respondent on 26 November 1998. It was then affirmed by a decision of the Refugee Review Tribunal (the Tribunal) on 26 May 2000. Shortly after that date the appellant joined in the proceedings in the High Court in the matters of Muin v Refugee Review Tribunal and others; Lie v Refugee Review Tribunal and Others (2002) 190 ALR 601.
Following the decision in that case, the appellant instituted his own proceedings in the High Court on 21 May 2003, seeking prerogative orders to quash the decision of the Tribunal for jurisdictional error. That matter was remitted to this Court for hearing and determination and in turn transferred to the Federal Magistrates Court for hearing and determination.
On 18 March 2004 the Federal Magistrates Court determined that there was no arguable case on behalf of the appellant for prerogative relief of the nature sought. It refused the application for an order nisi to the Tribunal to show cause why its decision should not be set aside: see M116 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 168.
The appellant sought leave to appeal from that decision on 28 April 2004. Leave to appeal from that decision was refused in essence because there was no prospect of the appeal (if leave to appeal were granted) being successful: see M116 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 525.
Subsequently, the appellant instituted further proceedings in the Federal Magistrates Court on 11 May 2004, seeking to quash the decision of the Tribunal of 26 May 2000, that is the same decision which had been the subject of his earlier review application. The grounds of the application were general, and were the same grounds as those in the draft order nisi for prerogative orders presented in his application to the High Court and subsequently, ultimately determined by the Federal Magistrates Court. So much appears from the grounds in the application to the Federal Magistrates Court in the matter from which this is an appeal and in the draft order nisi, described in the Magistrate's decision of 21 February 2005, pars [6] and [7].
On 21 February 2005 the application to the Federal Magistrates Court was dismissed. At that time, the appellant did not appear at the hearing. The learned Magistrate proceeded to hear and determine the application on the merits.
It is the judgment of 21 February 2005 which is the subject of the present appeal.
The notice of appeal does not set out any particular matters identifying error on the part of the learned Magistrate in dismissing the application. The appellant has also filed an outline of submissions. I have carefully considered it. It recites matters of history and asserts grounds of error on the part of the Tribunal, which again are the same grounds as previously contained in his application to the High Court. The appellant then recites his personal history, the history of his claim, and the facts upon which he claims to have a well-founded fear of persecution so as to satisfy the criterion for the grant of a protection visa specified in section 36(2) of the Migration Act 1958 (Cth) (the Act). At the completion of that recital of facts, the appellant repeats the claims to have a well founded fear of persecution which he put before the Tribunal and which have been dealt with in the series of decisions to which I have referred.
Finally, the appellant’s submission asserts that the Tribunal was in breach of ss 47 and 65 and Pt 7 of the Act, or otherwise in breach of its obligation properly or at all to consider his claims for a protection visa. Section 47 simply requires the respondent or her delegate (and on review, the Tribunal) to make a decision on a protection visa application and s 65 directs the respondent or her delegate (and on review, the Tribunal) to make a particular decision to grant or refuse a visa application depending upon the decision-maker’s satisfaction as to the existence or otherwise of the criteria for the grant of the particular visa sought. Part 7 of the Act deals generally with the review of protection visa decisions. Relevantly Part 7 of Div 4 sets out steps the Tribunal must take in the conduct of its review. Nothing has been identified in any of the documents filed on behalf of the appellant to indicate any failure on the part of the Tribunal in complying with those obligations.
I turn then to the Tribunal's decision and the way in which that was approached by the Magistrate from whom the present appeal is brought.
The Tribunal recorded the appellant's claims about his activities and the threats to him which he experienced by reason of his activities whilst in Sri Lanka up to 1997. It recorded that he then left Sri Lanka and became a crewman on a vessel called Mercas Hendala, and it recorded the particular incident apparently in June 1998 when that vessel was unloading at Point Pedurti, which ultimately led to him fleeing Sri Lanka and coming to Australia.
All of those matters are matters repeated in the appellant's outline filed in support of this appeal. It is the same document as that filed in the proceedings before the learned Magistrate. The Tribunal accepted generally the appellant's claims. It is not necessary to refer to the claims in detail in those circumstances. In essence, the Tribunal accepted that the appellant was a low level supporter of the United National Party, but it was not satisfied, because he was not a high profile member or a supporter of that party, that there was a real chance that he would suffer persecution for his political opinions (that is, his support for that party) if he were to return to Sri Lanka.
It also accepted his account of the incident when the vessel was unloading at Point Pedurti. As to that incident, it did not regard it as giving rise to a well-founded fear of persecution because the appellant was of interest to the LTTE. It did, however, accept that the appellant was forced to participate in the diversion of weapons on that occasion, and that he was being sought by the Sri Lankan authorities because of his involvement in that incident. It identified the issue as to whether the appellant, by reason of his involvement and what he then feared, had a well founded fear of persecution within the meaning of the Convention. In other words, as I understand the Tribunal's reasons, it accepted that the appellant had been involved in a particular incident in June 1998 involving the diversion of weapons. It accepted that he feared the consequences of his role in that incident from the Sri Lankan authorities.
What it then turned to address is whether that fear was for a Convention reason. After referring to authorities touching on that topic, the Tribunal said:
‘There are a number of laws under which the Applicant could be charged including the general criminal law (theft) and the Prevention of Terrorism Act (PTA). The maintaining of national security and the protection of public safety, and the arrest of terrorists and the prevention of the diversion of government weapons to terrorists/enemy are a "legitimate object of the country of refuge." As stated by McHugh (sic) in Applicant A supra at 258, "A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens." The Tribunal finds that laws under which the Applicant could be charged are criminal laws and security laws that are aimed at protecting the community.
The Tribunal finds that these laws are ‘laws of general application. [sic] There is no information before the Tribunal that indicates that the laws under which the Applicant could be charged are applied in a discriminatory manner.
The Tribunal finds that if the Applicant were to be arrested and charged over the Point Pedro incident involving the theft of weapons, it would not be persecution, but rather prosecution pursuant to laws of general application applied in a non discriminatory manner and to achieve a legitimate object of the country of refuge.’
Consequently, the Tribunal was not satisfied that the appellant faces persecution as defined in Art 1A(2) of the Refugee's Convention if he were to return to Sri Lanka. He therefore did not meet the criterion set out in s 36(2) of the Act for a protection visa. In other words, the Tribunal, whilst accepting in particular the applicant's claims as to what he had experienced in June 1988, was not satisfied that the consequences which might be visited upon him if he were to return to Sri Lanka were for reasons of race, religion, nationality, membership of a particular social group or political opinion. Those consequences, it considered, would simply follow because he had engaged in unlawful behaviour under laws of general application. It did not regard his race, religion, nationality, membership of a particular social group or his political opinion as resulting in those laws of general application being applied to him in a discriminatory manner.
The learned Magistrate, in his reasons of 21 February 2005, considered that the application to quash the Tribunal decision should be dismissed, because it was an abuse of process, having regard to the earlier proceedings in which similar issues had been raised unsuccessfully and on the merits. The Magistrate dealt with the merits of the claim in pars [16] to [21] of his reasons for decision. The Magistrate made the same points to which I have referred, that is that the Tribunal had accepted the appellant's history of what had happened to him or what he had experienced, but considered that it did not expose him to persecution for a Convention reason but simply to the application of laws of general nature and general application which would be applied in a non‑discriminatory way to him if he were to return to Sri Lanka.
As I have said, the present appeal does not identify any way in which the learned Magistrate fell into error. In my view, he did not do so.
Nor does the present appeal identify in any way in which the Tribunal itself fell into error. It was required to address firstly whether the appellant had a fear of adverse consequences if he were to return to Sri Lanka. It accepted that he did. It had to consider whether that fear was well founded. It accepted that it was. It had to decide whether the consequences which might be visited upon the appellant were of sufficient significance to amount to persecution. It accepted that they were. It then had to consider whether those consequences might be visited upon him for a Convention reason. It was not satisfied that that was the case. Indeed it concluded that the consequences would be experienced by him because of the application of laws of general application to the community at large, and applied in a non-discriminatory manner.
In my judgment, no error is shown in the decision of the learned Magistrate. Nor are there any errors shown in the reasons for decision of the Tribunal itself. I therefore dismiss the appeal. I order that the appellant pay to the respondent costs of the appeal.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 3 November 2005
Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: K Bean Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 14 October 2005 Date of Judgment: 14 October 2005
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