MZWHM v Minister for Immigration
[2005] FMCA 185
•10 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWHM v MINISTER FOR IMMIGRATION | [2005] FMCA 185 |
| MIGRATION – Review of decision of Refugee Review Tribunal – refusal of application for protection visa – grounds of review not particularised by applicant – no error of law – application dismissed – costs. |
Migration Act 1958 (Cth)
Plaintiff S157/2000 v Commonwealth of Australia (2003) 195 ALR 24
Craig v South Australia (1995) 184 CLR 163
NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
| Applicant: | MZWHM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 549 of 2004 |
| Delivered on: | 10 February 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 10 February 2005 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondent: | Mr Hay |
| Solicitors for the Respondent: | Clayton Utz |
ORDER
The application is dismissed.
The applicant pay the respondent's costs fixed in the sum of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 549 of 2004
| APPLICANT MZWHM |
Applicant
and
| MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant filed an application on 18 May 2004 seeking judicial review of the decision of the Refugee Review Tribunal (the Tribunal) made 25 July 2000, which affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa.
This is the applicant's second application for review of the Tribunal's decision. The applicant's first application was filed in the High Court of Australia in May 2003. That application was transferred to the Federal Court and subsequently to this court. Federal Magistrate McInnis ordered that that application be refused in March 2004. Leave to appeal his decision was refused by Justice Heerey in May 2004. This application was filed eight days after the decision of Justice Heerey.
History
The applicant is a citizen of Sri Lanka. He arrived in Australia on 7 June 1995 on a passport issued in his own name in Colombo. He arrived in Australia on a visitor's visa. On 8 December 1998 the applicant applied for a protection visa to the Department of Immigration and Indigenous and Multicultural Affairs. On 6 January 1999 a delegate of the respondent refused to grant to the applicant a protection visa. On 22 March 2000 the applicant applied to the Tribunal for review of the delegate's decision and on 25 July 2000 the Tribunal affirmed the delegate's decision.
The applicant worked – and whilst in Sri Lanka – as a translator between 1987 and 1989. As part of his employment he worked with the JVP, the SLFP, the LTTE and PLOTE. The applicant claimed he would be persecuted if he returned to Sri Lanka due to his past translation work. Specifically the applicant claimed that:
a)his Sinhalese neighbours had threatened him with death after discovering he had sent medicines to Jaffna on behalf of the LTTE;
b)the JVP threatened him with death when they discovered that he had provided translation services for the major political parties;
c)he had been detained for one hour at the Sri Lankan airport after returning to the country in 1992, after an absence of three years;
d)his brother informed him that former associates were seeking information as to his whereabouts; and
e)he would not be able to rely on the protection of any of the major parties, including the then‑PA Government due to his past associations with other political parties. He was viewed as a traitor by the Government, who would take action against him.
The applicant gave oral evidence to the Tribunal on 16 June 2000 whereupon he enlarged upon these claims, as detailed in the Tribunal reasons. The Tribunal noted that:
the applicant's adviser indicated the applicant had an imputed political opinion of support for Tamil politics and also religious beliefs in that he was not an adherent to the dominant interpretation of Buddhist religion in Sri Lanka.
The Tribunal was provided with newspaper articles from the adviser of the applicant as to the then-security situation in Sri Lanka, resultant censorship and the incidence of suicide bombings. The Tribunal provided country information of which it was aware to the applicant concerning the situation with the JVP and the general political situation in Sri Lanka.
Findings of the Refugee Review Tribunal
The Tribunal acknowledged (from country information) that the late 1980s was a particularly violent time in Sri Lankan history and that many human rights abuses were committed on all sides. The Tribunal accepted that the applicant had worked for a number of peace groups in Sri Lanka in the late 1980s which may have caused him at that time to be fearful of some groups with which he dealt, including the JVP. The Tribunal found, however, that despite claims that the applicant had been threatened by the JVP nothing had ever happened to him at the time. The Tribunal outlined country information indicating that the JVP was now a mainstream political party and that there was no indication that it or its supporters pursued a policy of retribution against others who do not accept their beliefs. The Tribunal noted that the applicant had provided no information to support such a proposition and did not accept that the applicant would now be at risk of harm from this group for activities he undertook over 10 years ago.
The Tribunal noted that despite the applicant indicating that threats had also been made to him from both a UNP and an SLFP supporter that nothing ever happened to him as a result of those threats at that time, nor when he returned to live in Sri Lanka from August 1992 until September 1994. The Tribunal considered that even if the applicant had been living a quiet life in country areas for some of this time it did not consider that the applicant would have been unharmed for all of this time if people from some political party had wished to harm him for reason of his real or imputed political opinion.
The Tribunal accepted that the applicant was detained and questioned for an hour at the airport on return to Sri Lanka in 1992 and then released. The Tribunal however considered that treatment not to amount to persecution but rather be a reasonable action taken by a State involved in a civil war and seeking to protect its citizens.
The Tribunal did not accept that the applicant would have an imputed profile of support for the LTTE and considered it merely speculative to suggest that a person such as the applicant, who is of the majority Sinhalese group, would have an imputed profile of being pro-the Tamil LTTE simply because he did not embrace more conservative forms of belief about Sinhalese nationality and Buddhist thought. The Tribunal found no evidence to suggest that people are persecuted for such a thing in Sri Lanka. The Tribunal found no evidence to support the proposition that individual Sinhalese are being attacked for their perceived pro‑Western or less Sinhalese‑centric views. The Tribunal noted the applicant had not presented any information to support that claim and the Tribunal noted that it had not seen any information to support such a claim either. The Tribunal also found no evidence that the Sri Lankan government would support such movements or would not provide adequate State protection for a citizen subjected to harassment from others. It referred to country information to the effect that the government respected the rights of citizens outside of the war zone and that there was a functioning police force and independent judicial system. The Tribunal considered that the applicant would be able to seek the protection of the State if he felt so threatened.
On 7 December 2004 the applicant filed an amended application. He claimed that:
(a)the Tribunal had not considered `the proper nature of these (political) organisations and how violent they are and their desire for retribution against people they view as traitors’ and had not `properly done its research’; and
(b)the Tribunal was incorrect to find that his detention at the airport did not amount to persecution; and
(c)the applicant would not be afforded state protection in Sri Lanka and the Tribunal's view that `the Sri Lankan government would provide adequate state protection for a citizen who was subjected to harassment from others’ was only a `generalised statement’.
These grounds were repeated in the applicant's contentions of fact and law filed on 7 December 2004.
The respondent in its contentions of fact and law filed on 7 February 2005 rebutted the applicant's arguments. The respondent argued that the applicant was making "impermissible merits submissions" by seeking to challenge the determinations of fact the Tribunal had made and thus there was no identifiable jurisdictional error. The respondent also contended that the applicant's second application for review of the Tribunal's decision was out of time, was an abuse of process and that there had been a significant delay in commencing proceedings which were not explained in the circumstances. Upon the hearing of the matter the respondent pressed the grounds that the application was merely a merits review; was an abuse of process and otherwise indicated no further grounds were relied upon.
The Legislative Framework
Under section 65(1) of the Migration Act 1958 (Cth) (the Act) a visa may be granted only if the decision-maker is satisfied that the prescribed criteria for the visa have been satisfied. Subsection 36(2) of the Act provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the 1951 Refugees Convention as amended by the 1967 Protocol Relating to the Status of Refugees. Article 1A(2) of the Convention relevantly defines a refugee as any person who:
owing to a 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 is unable, or owing to such fear, is unwilling to return to it.
The term "well‑founded fear of persecution" is effected by the provisions of section 91R of the Act.
Following the decision of the High Court in Plaintiff S157/2000 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision will be reviewable if it can be established that the Tribunal has exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Act does not exclude consideration by the court of decisions which involve a failure to exercise jurisdiction or which involve a Tribunal exceeding jurisdiction, as such decisions are not decisions made under the Act for the purposes of section 474.
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 list is not exhaustive.
Consideration
The amended application filed does not contain properly particularised grounds of review. The applicant simply contends that the decision was made without jurisdiction or is affected by an error of law.
I accept the respondent's submissions that the applicant seeks to challenge the Tribunal's findings of fact. These findings of fact are within the jurisdiction of the Tribunal and not this court. Throughout his contentions the applicant attacks the Tribunals findings of facts as wrong. It is not for this court to engage in a merits review. The Full Court of the Federal Court considered this in NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 concluding (at [9]):
The findings of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in a merits review. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
The Tribunal understood its task and proceeded to make findings on the evidence placed before it. There is no error apparent in the Tribunal's reasons. The Tribunal accepted country information which it had available to it, which is a matter for the Tribunal. Essentially all the claims of the applicant are attacks on the Tribunal's findings of fact, which are not judicially reviewable. The applicant takes issue with the Tribunal's findings that the applicant's treatment at the airport did not amount to persecution. I accept the respondent's submission that the Tribunal held correctly that the applicant's detention for an hour at an airport in a time of civil war does not amount to "serious harm" (Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379).
The respondent submitted that the proceedings amounted to an abuse of process and raised no judicially reviewable questions. I accept that submission. In this case the applicant has in his second application to the court challenged the decision which formed the basis of his first application. No additional grounds of substance are identified. The applicant's proceedings before me are manifestly groundless and as such an abuse of process and ought be dismissed. The litigation of such matters, being a claim without any foundation contained within a second application can bring the court into disrepute.
The application will be dismissed and the applicant shall pay the costs of the respondent.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 10 February 2005.
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