MZWJH v Minister for Immigration - [2005] FMCA 356

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWJH v MINISTER FOR IMMIGRATION

[2005] FMCA 356

MIGRATION – Application for protection visa – no error by Tribunal.

Migration Act 1958

Applicant:

MZWJH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MLG 604 of 2004

Delivered on:

7 February 2005

Delivered at:

Melbourne

Hearing Date:

7 February 2005

Judgment of:

Phipps FM

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Ms Macdonnell

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicants pay the respondent's costs fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 604 of 2004

MZWJH

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for a prerogative writ in relation to a decision of the Refugee Review Tribunal. The applicants are a married couple who are citizens of Sri Lanka. Their two children are also applicants. The claim for refugee status is made by the female applicant alone and the claims by the other parties depend upon her claim.
On 12 May 1996, she arrived in Australia on a visa as a dependent of her husband who held a student visa. On 30 June 1997, she applied for a protection visa and on 21 July 1997, a delegate of the respondent minister refused to grant the visa. On 12 August 1997, she lodged an application with the Refugee Review Tribunal for review of the decision to refuse the visa and on 18 February 2000, the Refugee Review Tribunal determined that the decision of the delegate be affirmed. On 22 December 2000, the applicant filed an application in the High Court by joining what is known as the Muin and Lie class action.
The applicant's contentions assert that that application was discontinued. The respondent's contentions assert that the High Court remitted that application to the Federal Court on 16 June 2003 and that it was dismissed on 30 April 2004. There is no material in the Court book and no evidence before me one way or the other about what occurred and Ms Macdonnell, who appears for the respondent minister, does not take any point in relation to estoppel or res judicata.
The proceedings in this Court were commenced on 26 May 2004. An amended application for review was filed on 17 November 2004. The applicant is Sinhalese. She lived with her mother and sister in an area in Sri Lanka from 1988 until May 1996 when she left for Australia. Her house was located five houses away from the entrance to an oil storage complex. Members of Liberation Tiger of Tamil Eelam, known as the LTTE, attacked the oil storage in 1995. The applicant was home alone and two LTTE members broke into her home while she was there. They tied her up and remained in the house for several hours. They told her they would kill her and her family if she divulged any information about them.
In about February 1996, police officers visited her home and questioned her and her mother and sister about the attack on the oil storage complex. She told them that she had not been home at the time. She claimed that the police returned to take fingerprints from the home. Two months after the applicant arrived in Australia, police officers questioned her mother and sister about her and a police officer told them that the police believed that the applicant had information about the attack. Three months later the police went to the applicant's former house with two Tamil youths who were apparently suspects.
The applicant feared that she would be harmed by Sri Lankan authorities on the grounds that she supported the LTTE and therefore, so far as a claim to refugee status is concerned, on the ground of imputed political opinion.
The Tribunal findings are brief, and rather than attempt to summarise them I will read them. The Tribunal says this under the heading Findings and Reasons. I will delete references to anything which might potentially identify the applicants:
The applicant's evidence at the hearing was consistent, detailed and plausible in relation to her experiences on the night of the attack on the oil storage complex. She responded to questions about that night clearly and without hesitation. I find that she genuinely fears that she will be harmed by the security forces if she returns to Sri Lanka. I accept that two Tamil men broke into the applicant's home, tied her up and remained there for several hours shortly after the oil storage complex was attacked. I find that the police visited the applicant's home and questioned her and her family about the attack as part of routine investigations in the area and that the applicant did not inform the police that she had harboured the two men because she was afraid that she or her family would be killed by the LTTE if she did so.
I find it implausible that the police would have taken fingerprints from the applicant's home some four months after the attack, that the police questioned her mother and sister and informed them that the applicant had information about the attack and that the police would have taken suspects to her home at least five months after she learned that the police had arrested them. Nevertheless I am prepared to find that the applicant genuinely fears that she will be harmed by the security forces on the basis that she learned that the police had arrested suspects and consequently believed that the suspects would tell the police of her involvement.
I accept that it is possible that the applicant would be convicted and sentenced for failing to provide information to the police to assist with the investigations into the attack on the oil storage complex. However, I find that there is only a remote chance that the police would impute political opinion of the LTTE to the applicant and harm her for that reason. I do not accept that her account of what took place on the night of the attack on the oil complex, and in particular of the threats made against her, would be disbelieved by the Sri Lankan police. I find that the police would believe that the applicant had only assisted the LTTE under duress. If the applicant were convicted and sentenced under the Prevention of Terrorism Act for failing to provide information this would be a matter of the Sri Lanka authorities enforcing a law of general application. The non‑discriminatory enforcement of a generally applicable criminal law or laws designed to protect the general welfare of society does not constitute persecution for the purposes of the convention.
The Tribunal then referred to a High Court decision on that point. The Tribunal went on:
On the basis of the country information I accept that the emergency laws give wide powers to the Sri Lanka police and that some detainees have been tortured and mistreated in custody. However, that information and the applicant's evidence do not suggest that the emergency laws would be applied to her in a discriminatory or persecutory manner. As outlined in the country information it is people of Tamil ethnicity who face a significant risk of torture, detention and mistreatment under the emergency laws. The applicant is of Sinhalese ethnicity and has no history of political involvement or of an association with the LTTE. Therefore I find that the applicant's fear that she will be harmed by the Sri Lanka authorities is not well‑founded and that any sanction that may be applied to her upon return to Sri Lanka would not be applied for a convention reason.
The Tribunal said it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
The amended application was filed on 17 November 2004 together with contentions of fact and law dated 16 November 2004. The application sets out as the grounds that the Tribunal acted without or in excess of jurisdiction and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material.

It alleges a failure to accord procedural fairness. It alleges that the decision was so unreasonable that no reasonable decision‑maker would have made it and it alleges that the Tribunal failed to review and consider the application for the purposes of s.47, 65 and 414 of the Migration Act 1958.
The particulars under the first ground, that is, the jurisdictional error ground, independently of the procedural fairness ground, is that the Tribunal failed to consider the first applicant's express claim that she was at risk of persecution from the LTTE, a politically motivated organisation. So far as that particular is concerned, that is not a ground which was asserted by the first applicant before the Tribunal. The applicant was represented by a migration agent, or had the assistance of a migration agent, before the Tribunal. The Tribunal refers to written submissions that it had before it dated 2 September 1997, 13 September 1999 and 10 January 2000. There was oral evidence given to the Tribunal on 20 December 1999 by the applicant, that is, the first applicant, and she was there represented by the migration agent, who is a solicitor.
None of the material raises that claim. It was not one that the Tribunal was required to deal with. Indeed it is not a claim which arises out of the material at all. There is nothing in what the first applicant put before the Tribunal which suggested that she was at risk of persecution from the LTTE itself. What she feared was the police or the Sri Lankan authorities.
Particulars under the jurisdictional error ground allege that the Tribunal ignored or failed to take into consideration relevant material submitted by the first applicant, namely the first is the submission made by the applicant's migration agent, especially the documents marked with the letters K6, K7, K9 and K10. The Tribunal said specifically that it has had before it those written submissions. In any event, it is apparent from the Tribunal's decision that it did have regard to the type of material which is contained in those documents. Those documents refer to the attack on the oil storage complex and the fact that people have been mistreated and tortured while in detention in Sri Lanka. The ground is not made out.
The second ground is the Tribunal failed to consider whether the first applicant was persecuted due to the fact that she was Sinhalese. There is no basis on the facts for an allegation by the first applicant that she was persecuted because she was Sinhalese. If it is meant to say that she was persecuted by the LTTE or was at risk of persecution by the LTTE, I have already dealt with that. There is no basis for saying that on the material. If it is an allegation that she was at risk of persecution from the Sri Lankan authorities because she is Sinhalese, again there is no basis for that. The only matters put forward in the material is the risk of detention and harm from the police or Sri Lankan authorities because of the events which took place when the oil storage complex was attacked.
The third particular is the Tribunal did not consider the fact that the first applicant was fearful of returning back to her country of origin due to torture chambers, as submitted on behalf of the applicants by the migration agent. That has already been dealt with. The Tribunal did have before it material about torture chambers and the Tribunal did accept that the applicant had a fear of detention by the police and mistreatment, which might include torture by the police. The Tribunal took that into account.
The next ground is that the first applicant's escape to Australia from her home in Sri Lanka associated harassment for convention reasons. The contentions which have been filed on behalf of the applicant have expanded on the allegation that I have already dealt with, that she feared persecution by the LTTE. So far as her escape being for a convention reason is concerned, the Tribunal has dealt with that as a matter of fact. The Tribunal has accepted the description of events which took place when the oil storage complex was attacked and it has rejected some of what the applicant alleged occurred after that night. The Tribunal has accepted that it is possible that the applicant would be convicted and sentenced for failing to provide information to the police with investigations into the attack of the oil storage complex but found it was only a remote chance that the police would impute political support of the LTTE to the applicant and harm her for that reason. The Tribunal did not accept that her account of what took place on the night of the attack and in particular the threats against her by the LTTE would be disbelieved by the Sri Lankan police.
The Tribunal's finding as a matter of fact is that were the applicant to be convicted and sentenced and therefore if she were to be detained under the Prevention of Terrorism Act, it would be for the purpose of enforcing a law of general application, it would not be because the authorities imputed any political belief to her. It would be because she had not reported the presence of LTTE members, people suspected of terrorism or criminal acts, in her house. She would not be arrested and possibly convicted and sentenced because of race, religion, nationality, membership of a particular social group or political opinion. It would simply be enforcing a law of general application.
The next particular is the fear associated with convention reasons, namely physical assault by tying her up, threats made and holding hostage. The Tribunal accepted that that happened in Sri Lanka but it was not put to the Tribunal that that put her at any risk of persecution or ill‑treatment for a convention reason, that is, by the LTTE. I have already dealt with that.
The final particular under the jurisdiction ground: the Tribunal failed to take into account the consideration that the police did not actually protect or the possibly of torture that the applicant could have undergone before, or not at all clearing up her connection under the emergency laws existing at the time. That is a restatement, if it is anything, of the allegation that she had a fear, a genuine fear, of arrest and the possible mistreatment and torture. The Tribunal accepted that that might happen but found that that was not for a purpose as set out in the refugee convention.
Overall, so far as the allegation of jurisdictional error is concerned, nothing is made out. The Tribunal has made clear findings of fact.

It has not accepted some of the applicant's evidence but it has accepted the significant parts of her evidence, that is, that she was tied up by Tamil men after an attack on an oil storage complex, that the police came to the house, that she did not tell the police about what happened, that she feared she might be arrested, mistreated, charged and convicted. The Tribunal accepted all of that but then found as a matter of fact that if those things occurred, it would not be because of any of the reasons set out in the convention. Matters of fact are for the Tribunal. No error of law and no jurisdictional error is found.
The second ground is a failure to accord procedural fairness. The particulars allege that the applicant was not given a chance to respond to the proposed finding regarding subjective fear. There is no basis for that. The applicant had every opportunity to put her case and indeed after the hearing on 20 December 1999, a further submission was put before the Tribunal by her solicitor dated 10 January 2000. The Tribunal has taken that into account. There has been no failure to accord procedural fairness.
The third ground is the decision was so unreasonable that no reasonable decision‑maker would have made it. There is no basis for making that application. The fourth ground refers to various sections in the Migration Act but it is no more than a restatement of what has already occurred. No jurisdictional error is shown, no basis for the issue of a prerogative writ is shown.
Ms Macdonnell for the respondent minister raised an issue going to the Court's discretion, that is, the delay in commencing the proceedings. The only delay which is relied upon is that between 18 February 2000, the date of the Tribunal's decision, and 22 December 2000, when the applicant commenced her proceeding or joined the class action in the High Court. I do not need to consider the discretionary matter because there is no basis for the application in any event. The consequence therefore is that the application is dismissed.
I have dismissed the application and there has been an application on behalf of the respondent minister for costs. The normal rule in Court proceedings, this being a Court, is that a party who is unsuccessful in an application is ordered to pay the other party's costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: