MZWGO v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1070

FEDERAL COURT OF AUSTRALIA

MZWGO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1070

MZWGO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND THE REFUGEE REVIEW TRIBUNAL

VID 343 OF 2005

NORTH J
21 JULY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 343 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWGO
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

21 JULY 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. Leave is granted to join the Refugee Review Tribunal as the second respondent to this appeal.

1. The appeal is dismissed.

1. 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 343 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWGO
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	NORTH J
DATE:	21 JULY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a decision of McInnis FM given on 5 April 2005. The Federal Magistrate dismissed an application for review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), made on 15 November 2000. The Tribunal had affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant a protection visa to the appellant. On 26 May 2005 the Acting Chief Justice made a determination pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that this appeal would be heard by a single judge.

PROCEDURAL HISTORY

1. The appellant arrived in Australia as a student on 22 July 1995.  On 29 December 1995 he lodged an application for a protection visa, which was refused on 22 May 1996.  He then applied to the Tribunal for review of this decision.  The Tribunal affirmed the refusal of his application on 19 September 1996.  On 15 October 1996 the appellant’s solicitor wrote to the first respondent requesting his intervention, but on 28 February 1997 the first respondent declined to intervene.

2. On 13 April 1997 the appellant departed Australia to return to Sri Lanka.  He married on 22 May 1997 in Colombo.  Seven weeks after leaving Australia, on 2 June 1997, the appellant returned to Australia on the basis of an existing visa which expired on 31 July 1997.  The wife of the appellant arrived in Australia from Sri Lanka on 15 September 1997 on a student visa and passport issued in her maiden name.

3. Approximately 11 months later, on 11 August 1998, the appellant lodged a second application for a protection visa.  This was possible because the appellant had left Australia since the determination of his first application.  The delegate of the first respondent refused this second application on 27 October 1998.  That refusal gave rise to the decision of the Tribunal on 15 November 2000 that is the subject of the present proceedings.

4. On 22 May 2003 the appellant lodged an application for judicial review of the Tribunal’s decision in the High Court.  The High Court remitted the matter to this Court, which subsequently transferred to the matter to the Federal Magistrates Court.  On 18 March 2004 the Federal Magistrates Court refused to grant an order nisi in respect of that application.  The appellant sought leave from this Court to appeal that judgment, but Ryan J dismissed that application on 23 April 2004 for want of prosecution.

5. The appellant then filed a further application in the Federal Magistrates Court.  It is the decision of McInnis FM on that application with which this appeal is concerned.

BACKGROUND TO THE APPLICATION AND THE CLAIMS BEFORE THE TRIBUNAL

1. The appellant is a citizen of Sri Lanka.  He is 38 years old and is of Sinhalese ethnicity.  He claims to fear persecution on the ground of his political opinion, namely, his support of the United National Party (UNP).

2. The claims relate to the very limited period of seven weeks in 1997 when the appellant returned to Sri Lanka in order to get married.  He claimed that a few weeks after his return he met many of his UNP friends with whom he had previously worked in supporting the party.  He helped them prepare posters and flags and became involved in fundraising activities.  He claimed that soon after commencing this work he was harassed and threatened.  He said that he was accosted a number of times on the street by members of the Peoples’ Alliance (PA) and their supporters, and was attacked by these people at political rallies.  He said that his home was stoned at night and threats were painted on the external walls.

3. One particularly serious event he relied upon was an attack by a number of PA supporters, including a number of ex-police officers.  He claimed that they were armed and tried to break into his house.  He said that he escaped from the house whilst his wife stalled the attackers.  He heard gunshots as he left.  He said that he feared for his life as a result of the incident.  A friend later told him that his wife had been harassed and threatened by the PA supporters, who had told her that the appellant would be killed if they caught him.  He said that he asked a friend to go to the local police station to make a complaint about the raid on his home, but his friend later told him that the police were not interested.  The police apparently added that if he was truly in fear then he should go in person to the police station.

4. He then stayed away from home but phoned his wife to say where he was staying and that he was well.  She told him that there had been strangers hanging about the house and a number of phone calls from people asking as to his whereabouts.  The appellant claimed that the next day he was accosted by a group of men wielding knives and batons whilst he was going to the shops.  He said they beat him.  He said he was on the ground in great pain when local shopkeepers and others intervened, forcing his attackers to run away.  Soon afterwards he made arrangements to return to Australia.

5. His wife and family informed him that after his departure his wife was subjected to constant harassment and threats from PA members and supporters.  Such was her fear and his fear for her that she came to Australia in September 1997.

6. The appellant and his wife gave oral evidence to the Tribunal confirming these claims.  The appellant could not confirm who the people who had threatened him in 1997 were as he had not seen their faces.  At the hearing, the appellant provided a letter from his father indicating that unknown people were still coming to the house seeking him.  The appellant also provided a letter from a member of parliament saying that he could not provide the appellant with protection. 

THE TRIBUNAL’S FINDINGS

1. The Tribunal’s reasoning commenced with the following passage, which is of some importance to this appeal:

   I accept that the applicant may be a member of the UNP.

   I do not accept, however, that the applicant has been harassed in Sri Lanka in the way that he claimed, for the reasons outlined below.

   I find it implausible that the applicant would have been involved in the sort of policy dissemination activity he claimed on behalf of the UNP in May 1997.  There was no general election planned in Sri Lanka until October 2000, and no local government elections were about to be held either, with the local elections having been held in Sri Lanka, including for Colombo, in March 1997, the month before the applicant returned.  (See the 1997 US State Department Report on Human Rights in Sri Lanka, p 1705.)  I have seen no evidence to show that virtually non-stop campaigning by either political party occurs in Sri Lanka, and the applicant has not been able to provide any evidence to support this proposition.  I therefore do not accept that the applicant was involved in UNP activities in the way that he claimed.

   The story about being attacked twice by unidentified PA supporters is a relatively simple one.  I found the applicant’s account of the attacks on him, and the circumstances surrounding them, to be unconvincing.  He could not explain how PA supporters would know that he would be staying at his in‑law’s [sic] place when they attacked him.  Nor could he explain how they would know that he was planning to go to a particular shop to look for clothes with his wife, when he indicated that at that stage, he was in hiding from them.  Nor do I accept that if they had attacked the applicant for the reasons they claimed, that they would simply have told some of the crowd that they were from the PA and wanted the applicant to stop participating in politics.

   I find it implausible that a person who had been out of the country for about twenty months, and who had been in Sri Lanka again for approximately 6 weeks only, would be harassed by PA supporters in the way that the applicant claimed.

   I do not accept his explanation that he had a friend report these matters to the police.  If the applicant had indeed been harassed in the way he claimed, and wished to obtain police protection, I do not accept that he would send another party, who was not a witness to the assaults, to make a claim on his behalf.  Such a person would have no value to the police as his evidence would be hearsay.

2. The Tribunal then referred to country information concerning political violence in Sri Lanka, and found that it did not support the contention that harassment and violence between political parties occurred in the circumstances the applicant claimed.  It found that the consistent advice from the Australian Government’s Department of Foreign Affairs and Trade, confirmed as recently as 1999, indicated that violence between parties occurs around election times.  The Tribunal then made a finding that:

   There was no election activity during the short time that the applicant returned to Sri Lanka from Australia.

3. The Tribunal noted that evidence from newspaper articles supplied by the appellant supported this assessment.  The Tribunal then considered a number of other matters not centrally relevant to the appeal, before going on to find that there was not a real chance that the appellant would be persecuted by reason of his political opinion if he were to return to Sri Lanka.

THE APPLICATION IN THE FEDERAL MAGISTRATES COURT

1. The appellant then filed an application in the Federal Magistrates Court on 11 May 2004.  The grounds of that application were:

   2.The decision of the RRT was unreasonable and made with error of law.

   3.        The Tribunal fails to take into account of relevant considerations.

2. The application was amended by a document filed on 21 March 2005 which recited the details of the claim as follows:

   1.The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;

   2.The decision of the Tribunal being affected by jurisdictional error is not a decision to which section 474 of the Migration Act as amended applies.

   3.The decision of the Tribunal is affected by jurisdictional error in that the Tribunal asked the wrong question, identified the wrong issue, failed to take account of relevant material and took into account irrelevant material.

   PARTICULARS

   The tribunal is wrong when it states that it does not accept my explanation that I had a friend report these matters to the police.  If I had been harassed in the way claimed and wished to obtain police protection, the tribunal does not accept I would send another party who was not a witness to the assaults to make a claim on my behalf.  What the tribunal has not taken into account is that in my original submission I stated that when my house was raided by PA supporters, I recognised a number of ex police officers.  Therefore, given this observation it is only natural I would be hesitant in going to a police station and it was because of this reason that I chose to send a friend.  The tribunal has not taken this very important factor into account.

3. The Federal Magistrate dealt with the allegation that was made in the particulars set out above.  The Federal Magistrate found that the Tribunal dealt with the case put by the appellant and that the gist of the complaint was a complaint about the Tribunal’s findings of fact.  The Federal Magistrate held that the Tribunal had not committed any jurisdictional error.

THE APPEAL IN THIS COURT

1. On 15 April 2005, the appellant filed a notice of appeal in this Court, the grounds of which stated:

   1.The Federal Magistrate did not consider my case properly and made decision against me and the decision was made with error of law and breach of natural justice.

   2.The Federal Magistrate failed to give any consideration for my argument and only listened the respondent argument and made his decision in favour of the respondent.  This was bias decision.

   3.The Federal Magistrate only consider the respondent side.  It looked like his Honour making decision in favour of the Government.

2. The appellant has been self-represented throughout these proceedings.  On 6 July 2005 he filed contentions of fact and law which recited the background facts of the case in the terms of the claims originally made to the Tribunal.  The following argument is set out at [10]:

   Given my account as detailed above, the tribunal is not correct in not accepting that I was not involved in UNP activities.  His Honour was wrong in accepting the tribunal’s decision.  The tribunal is also wrong when it says my accounts of the attacks on me were not convincing.  His Honour was wrong in accepting the tribunal’s conclusion.  The tribunal is also wrong when it states that it does not accept my explanation that I had a friend report these matters to the police.  His Honour was wrong in accepting the tribunal’s conclusion.  If I had been harassed in the way claimed and wished to obtain police protection, the tribunal does not accept that I would send another party who was not a witness to the assaults to make a claim on my behalf.  What the tribunal has not taken into account is that in my original submission I stated that when my house was raided by PA supporters, I recognised a number of ex police officers.  Therefore, given this observation it is only natural that I would be hesitant in going to a police station and it was because of this reason that I chose to send a friend.  The tribunal has not taken this very important factor into account and His Honour has erred by accepting that the tribunal was correct on this point.

3. It can immediately be seen that the arguments relied upon by the appellant are the same arguments that were relied upon before the Federal Magistrate.  I agree with the Federal Magistrate that the Tribunal dealt comprehensively with the claim put by the appellant.  The essence of the argument relied upon by the appellant is an assertion that the Tribunal was wrong in its assessment of his credibility, particularly in relation to the allegation of the attacks said to have been made on him. 

4. In making these findings the Tribunal made an assessment of the credibility of the evidence given by the appellant.  It also relied upon country information about the likelihood of election violence having occurred at a time when there was no election in progress in Sri Lanka.  Not only is the Tribunal’s decision free of jurisdictional error, it is difficult to see how it could have come to any other conclusion. 

5. Similarly, the appellant challenges the rejection of the explanation about having a friend report the attack to the police.  This was again a matter of assessment by the Tribunal of the facts, taking into account the Tribunal’s view of the credibility of the evidence given.  There is no jurisdictional error evident in the decision of the Tribunal, and no error has been shown in the decision of the Federal Magistrate.  The appeal must therefore be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             8 August 2005

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	SD Hay
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	21 July 2005
Date of Judgment:	21 July 2005