MZWJH v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1255

FEDERAL COURT OF AUSTRALIA

MZWJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1255

MIGRATION – Appeal dismissed – no error in reasoning of primary judge disclosed

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, cited

MZWJH, MZWJI, MZWJJ and MZWJK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 142 OF 2005

MARSHALL J
7 SEPTEMBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 142 OF 2005

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWJH
FIRST APPELLANT

MZWJI
SECOND APPELLANT

MZWJJ
THIRD APPELLANT

MZWJK
FOURTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

7 SEPTEMBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants 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 142 OF 2005

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWJH
FIRST APPELLANT

MZWJI
SECOND APPELLANT

MZWJJ
THIRD APPELLANT

MZWJK
FOURTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MARSHALL J
DATE:	7 SEPTEMBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This matter is an appeal from a judgment of Federal Magistrate Phipps in which his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”). The RRT had affirmed a decision of a delegate of the first respondent not to grant the first appellant a protection visa.  The question for determination in the appeal is whether the RRT committed a judicially reviewable error in affirming the decision of the delegate.

   Factual background

2. The first and second appellants are respectively wife and husband. The other appellants are their children. They are all citizens of Sri Lanka and are of Sinhalese ethnicity. Only the first appellant applied for a protection visa.  The other appellants are members of her family unit for the purposes of her application.

3. On 12 May 1996, the first appellant entered Australia as the dependent spouse of the second appellant who held a student visa entitling him to enter Australia. On 30 June 1997 she applied for a protection visa. A delegate of the first respondent rejected that application on 21 July 1997. On 12 August 1997 the first appellant applied to the RRT for a review of the delegate’s decision. The RRT affirmed the delegate’s decision on 18 February 2000. For reasons which are not presently material, the appellants did not commence the proceeding before the Court below until 26 May 2004. They filed “an amended application for review” on 17 November 2004. The judgment below was delivered on 7 February 2005.

   The first appellant’s claims

4. Before the RRT, the first appellant claimed that she feared persecution, if returned to Sri Lanka, on account of her imputed political opinion. She said that the authorities in Sri Lanka considered that she supported the Liberation Tigers of Tamil Eelam (“the LTTE”). This was because she did not provide information to the police to assist them to prosecute LTTE members who attacked an oil storage complex nearby the appellants’ residence. She claimed that after the attack, on 20 October 1995, LTTE members broke into her home, whilst she was there alone. She said that they threatened her and her family with death, if she divulged any information about them. She claimed that she was questioned by police about the attack on the oil storage facility, but told police that she was not home at the time of the attack. She said she did this because of a fear of reprisal from the LTTE. A few days later the police returned to her home and took fingerprints. After learning of the arrest of the LTTE members suspected of attacking the oil facility, she was concerned that police would think she had helped the LTTE. She then made arrangements to travel to Australia. She claimed that shortly after she arrived in Australia, police questioned her mother and her sister about her and that the police believed she had information about the attack. Later, the police went to her home with two Tamil youths, who were suspected of involvement in the attack. The first appellant feared that she would be arrested at the airport, if returned to Sri Lanka, for assisting the LTTE.

   The RRT’s decision

5. The RRT found that the first appellant genuinely feared that she would be harmed by security forces if returned to Sri Lanka. It accepted that two Tamil men broke into her home, tied her up and remained there for several hours after the attack on the oil storage complex. It also found that police visited her home and questioned her and members of her family about the attack “as part of routine investigations in the area”. It further accepted that the first appellant did not tell the police about the two men for the reasons she gave, which are referred to above.

6. Although doubting some aspects of the first appellant’s claims about further police interest in her home, the RRT found that she:

   “…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.”

7. The RRT also accepted that it is possible that she may be convicted and sentenced for failing to provide information to police about the attack but found that:

   “…there is only a remote chance that the police would impute political support of the LTTE to [her] and harm her for that reason.”

8. It did not accept that the police would disbelieve her account of what happened on the night of the attack or that the police would believe that she had assisted the LTTE, other than under duress. It said that any conviction and sentence under anti-terrorism legislation for failing to provide information would be a matter for Sri Lankan authorities in their enforcement of a law of general application. It referred to non-discriminatory enforcement of a generally applicable criminal law as not constituting persecution, for the purposes of the Refugees Convention. The RRT, in that regard, referred to some observations of Brennan CJ and Dawson J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233 and 245 respectively.

9. The RRT did not consider that the Sri Lankan emergency laws would be applied in a discriminatory or persecutory manner to the first appellant, given her Sinhalese ethnicity and her lack of political involvement or association with the LTTE. It found that she did not satisfy the criteria for a protection visa and that the fate of the second appellant’s application rested upon the fate of her application.

   The judgment below

10. His Honour rejected the submission that the RRT failed to consider the first appellant’s claim that she was at risk of persecution from the LTTE. The learned Federal Magistrate referred to the written submissions and the oral evidence before the RRT and said that none of the material raised a claim about the first appellant being at risk of persecution from the LTTE. It only raised a claim that the first appellant feared persecution from the Sri Lankan police or other authorities.

11. His Honour next dealt with an allegation that the RRT failed to take into account relevant material. He rejected that ground. As it is not raised on appeal the Court will say no more about it.

12. His Honour described the next ground of review as whether the RRT failed to consider the appellant’s claim that she feared persecution on account of her Sinhalese ethnicity. He rejected that ground as being one which was never advanced before the RRT.

13. The learned Federal Magistrate then dealt with additional grounds of review, which he dismissed and which are not raised on appeal.

    The amended notice of appeal

14. The amended notice of appeal referred to two grounds. First, it was alleged that:

    “The learned magistrate has misunderstood and erred in finding that the first applicant has not made a claim before the tribunal that she was at risk of persecution from the LTTE.”

15. The second ground appears to quarrel with the characterisation given by his Honour to a ground he considered to be raised before him. It is said in the second ground that:

    “The learned magistrate erred in finding one of the ground urged was whether the first applicant will face persecution because she was a Sinhalese where as the actual ground argued was whether she will likely face persecution for being a Sinhalese with the perceived and/or imputed political opinion for alleged supporting of the LTTE.”

    The LTTE Claim

16. His Honour correctly determined that the first appellant did not advance a claim before the RRT that she feared persecution at the hands of the LTTE. The material before the Court does not reveal any such claim as having been advanced before the RRT.

17. In her written application for a protection visa the first appellant said in answer to a question about what she feared may happen to her if returned to her country:

    “I fear that the police officers have some evidence against me and if I go back to my country, I fear that [I] will be arrested and harmed or killed.” (emphasis added).

18. In answer to the question as to who would harm or mistreat her, she said:

    “…I fear that the authorities of my country will harm or mistreat me.” (emphasis added).

19. In answer to why they would harm or mistreat her, she said:

    “As I have not divulged about the LTTE members to the police more particularly when I was questioned, I will be harmed or mistreated by the authorities of my country.” (emphasis added).

20. When asked if she thought the authorities could protect her, she said:

    “As the authorities of my country are suspecting me to have helped the LTTE, if I go back to my country, I will not be protected by them.” (emphasis added).

21. In her written statement expanding upon why she left Sri Lanka, she said:

    “I fear that if I go back to my country, I will be blamed by the police officers for not divulging the information known to me and for allowing the LTTE members to stay at our house.”

22. In a document entitled “reasons for my review application”, attached to a letter dated 2 September 1997, the first appellant said that the LTTE ordered her not to make any complaints to the police or to “divulge the incident to anyone” and that if she did not comply with their order she would be killed.

23. She did comply with this order and has never made any claim that she feared that the LTTE would kill her if she returned to Sri Lanka.

24. Her essential complaint as set out in the last five paragraphs of her “reasons for review” document is that she fears that the police would harm her as someone who is suspected of assisting the LTTE.

    The Sinhalese ground

25. The second ground of appeal is entirely misconceived. If there was no claim that the first appellant alleged that she was at risk of persecution simply because of her ethnicity, there is no error in the RRT not dealing with any such claim. In any event, no claim as referred to in the second ground of appeal, with its emphasis on her Sinhalese ethnicity, was made by the first appellant. Her claim was as expressed in the preceding paragraph.

    Order

26. The appeal is devoid of merit and must be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:             7 September 2005

The second appellant appeared for himself and the other appellants.
Counsel for the First Respondent:	Ms J Macdonnell
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	7 September 2005
Date of Judgment:	7 September 2005