MZWNY v Minister for Immigration
[2005] FMCA 920
•8 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWNY & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 920 |
| MIGRATION – Impermissible merits review – findings exhibit probative logic – relocation with country. |
| Migration Act 1958, Div.4, Pt.7, ss.422B, 474 |
| Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323 SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 Australian Broadcasting RRT v Bond (1990) 170 CLR 321 Roads Corporation v Dacakis [1995] 2 VR 508 Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 Minister for Immigration and Multicultural Affairs; Ex parte Holland [2001] HCA 76 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 185 Applicant M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1218 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 |
| Applicants: | MZWNY, MZWNW & MZWNX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG849 of 2004 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 8 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 8 June 2005 |
REPRESENTATION
| Applicants: | First Named Applicant in person (assisted by interpreter, Mr Soysa) |
| Counsel for the Respondent: | Ms. Macdonnell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application for review filed on 28 June 2004 and amended on
6 October 2004 is dismissed.The Applicant pay the costs of the Respondent fixed in the sum of $6,500.00 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG849 of 2004
| MZWNY, MZWNW & MZWNX |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
By an application filed on 28 June 2004, and amended on
6 October 2004, the applicants seek to review the decision of the Refugee Review RRT (the RRT) made on 13 May 2004, which decision affirmed an earlier decision of the Respondent's delegate to refuse to grant a protection visa to the applicants. The principal applicant (the Applicant) is the mother of two boys who came to Australia on visitors visas. The two sons do not make applications in their own right. It is the Applicant’s circumstances that need to be assessed to determine whether or not Australia owes her protection under the refugee conventions.
The Applicant in her amended application filed on 6 October 2004 sets out various grounds for review. To the extent that those grounds are not particularised in her application and her contentions of fact and law, I take them to be abandoned. The Respondent has filed contentions of fact and law and has addressed those grounds which the Applicant intends to rely upon. Set out below are paragraphs 24 to 36 of the Respondent’s contentions. I adopt them as being a correct expression of the law and the correct recitation of the facts in this case.
“24In so far as the Applicant complains that the platform of the JVP, her father’s occupation as a policeman, her and her husband being bank employees and her being the mother of young children were irrelevant considerations, her complaint is founded on a misunderstanding of the law.
24.1What is or is not a relevant consideration is determined by the Act with the focus being on the application of the law and not centrally on the process of finding particular facts: see the joint judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] 206 CLR 323 at pp 347-348.
24.2In addressing itself to the relevant considerations as to whether the Applicant had a well-founded fear of persecution for a Convention reason, it was a matter for the RRT as to what conclusions it drew from primary facts. Even if the RRT had made an error of fact (which it did not), such an error would not be an error of law, let alone a jurisdictional error.
24.3 It is for the RRT to determine the merits of the claim: SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [20]
(24 October 2003) (Mansfield, Selway and Bennett JJ).
24.4 The RRT’s reasoning was logical. However, want of logic does not of itself suffice to constitute an error of law, still less an error of law which is jurisdictional: NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [30]
(31 October 2003) (Tamberlin, Emmett and Weinberg JJ).
24.5 As was stated by Kenny J in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 at [146]:
“A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu (unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 13 May 1999) [1999] HCA 21 at paras 40. 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting RRT v Bond (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC).”
29.4 That the Court cannot intervene on an application for prerogative writs, even if a tribunal made an error of fact or of evaluation of the evidence, was made clear by Kirby J in Re Minister for Immigration and Multicultural Affairs; E parte Holland [2001] HCA 76 at [35]:
“If, as I am inclined to think, there may have been an error of fact and of evaluation of the evidence by the Tribunal, it was one made within the Tribunal’s jurisdiction. The law allows tribunals to make such errors, subject to any procedures of appeal that exist, none of which are relevant in this Court. In the present state of the law, the Constitution only permits this Court to intervene if the applicant shows that the Tribunal made an error of jurisdiction as, for example, by misunderstanding or misexercising its jurisdiction or exercising it in a biased and unfair way.”
24.6 In any event, the RRT’s reasoning as to why it did not accept that the Applicant was an active member of the JVP in the late 1980s was logical.
24.7 The Applicant is inviting the Court to trespass “into the forbidden field of review on merits” per Mason CJ in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391.
25This ground of review must fail.
Alleged obligation of RRT to ask for a written explanation
26 The Applicant asserts that the RRT should have asked her to provide a written statement in relation to the question of why, at the age of thirty with an eight year old son and a one year old son and not having been part of a political movement in her previous years, the Applicant would become an active member of the JVP.
27.The Applicant again misunderstands the law and also misunderstands the RRT’s decision.
27.1On a fair reading of the RRT’s decision, what it has said is that she was unable to give it an adequate explanation in the course of the hearing of why she was an active member of the JVP in the late 1980s.
In other words, she was unable to satisfactorily explain what was implausible on the primary facts advanced by her.
27.2The RRT had told the Applicant that it was unable to come to a decision in her favour on the papers before it and she was afforded the opportunity of a hearing so that she could expand on her claims and address the RRT’s questions or concerns in relation to the veracity of her claims.
27.3The RRT was not required to afford her the opportunity of making written submissions on any issue which arose in the course of the hearing – nor does the Applicant say that she sought such an opportunity or what she would have done if it had been provided to her.
27.4 The RRT was not required to disclose its thinking process to the Applicant and ask her to comment on it, let alone to do so in writing. See Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 185 at [65]; Applicant M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1218 at [19].
27.5 Division 4 of Part 7 of the Act, which deals with the conduct of a hearing by the RRT, is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with:
see s 422B of the Act.
28.Accordingly, any of the grounds of review premised on the RRT having erred in not providing the Applicant with the (unsought) opportunity to provide written submissions post hearing, must fail.
Alleged error regarding her claimed fear of persecution
29. The Applicant complains of the RRT’s finding that the JVP functioned openly and refers to her written submission as giving “examples of assaults, harassment and even the killing of past JVP members” and of nothing having “been done by the government to prevent these atrocities”.
30 The examples to which the Applicant refers are mainly media releases by the JVP regarding alleged violence against JVP campaigners in the course of the election in 2000 and post that election, and of the involvement of politicians and government in that violence. Such media releases could not have any probative value in relation to the Applicant’s claimed fear of persecution by the JVP.
31 The Applicant did not claim at the RRT hearing that she feared persecution by the Sri Lankan government.
However (inconsistently with her statement to the effect that she had not ceased her JVP involvement in 1988, and that she had refused to provide funds to the JVP when allegedly asked to do so in 1994 and 2000), the Applicant has included a page with her statement alleging that she was a “strong and ardent supporter of the JVP” and “was identified as such by members of the community”, and that she was subjected to “random acts of violence and harassment” by PA supporters and her political opponents had taken out a contract to have her killed.
32.It was a matter for the RRT as to what weight it put on the material provided by the Applicant regarding alleged political violence against JVP activists. In any event, such material could not be determinative of the Applicant’s visa application. It would not have been enough for the Applicant to show that some JVP activists had been persecuted, she had to show that she was at a real risk of persecution (for a Convention reason). As Gleeson CJ, Hayne and Heydon JJ observed in their joint judgment in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 at [26]:
“No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence. Day by day, Australian courts deal with criminal cases involving violent attacks on person or property. Some of them may occur for reasons of racial or religious intolerance. The religious activities in which the first respondent engaged between May and December 1998 evidently aroused the anger of some other people.”
See also the judgment of McHugh J in Respondents S152/2003 at [79]-[82]:
“In order to establish that fear is well-founded in cases of private persecution, an asylum seeker will no doubt have to show more than that persons holding the same beliefs, opinions or membership of races, nationality or particular social groups are being persecuted. The asylum seeker will have to show that there is a real chance that he or she will be one of the victims of that persecution. That person will have to show some fact or circumstance that indicates that there is a real chance that he or she will be among the victims. Thus, it may be enough to show that, by reason of the conduct of the asylum seeker, he or she stands a greater chance of harm than other persons who hold the same beliefs or opinions, or membership of the particular group. Or it may be enough to show that a very high percentage of such persons are persecuted for a Convention reason and the circumstances of the applicant are similar to those who have been persecuted.
In many – perhaps most – cases, however, more will be needed than proof that a percentage of members holding beliefs, opinions or membership similar to the asylum seeker have been harmed for a Convention reason. Statistical percentages based on experience of past events are usually an accurate guide to the chance of similar events occurring in the future. Insurance companies and financial institutions, for example, bet heavily on such statistical percentages when estimating the chance of future events occurring. But a percentage chance based on the results of a number of events, by itself, seldom throws light on whether a future event is likely to affect any particular person, place or property. To make the percentage useful for predicting the occurrence of an individual event, the predictor has to know a good deal about the inputs that form the basis of the statistical calculation. The predictor must know, for example, the source and nature of the inputs, the period and the area over which they were collected and their significance for the subject of the prediction.
Each year, a significant percentage of Australians, aged between 50 and 60, suffer heart attacks. But that says little about the chance of any individual in that age bracket suffering a heart attack. The statistical chance of such a person having a heart attack has predictive value only when other factors concerning the individual are known – weight, levels of cholesterol of blood pressure, smoking, diet, exercise and genetic predisposition, for example. When they are known, their correlation with the risk of heart attack may convert an insignificant percentage concerning the age group as a whole into a high risk for the individual.
Hence, in determining whether an asylum seeker has a well-founded fear of persecution, usually the decision-maker has to know a good deal more than that other persons holding similar beliefs, opinions or membership have been persecuted.
It will ordinarily be necessary to know whether the circumstances of those persons were similar in all material respects to those that the asylum seeker will likely face. Only then will the experience of other members or the relevant category throw light on whether there is a real chance that the asylum seeker will be persecuted (emphasis added).”
33As the RRT found that the Applicant had not been a member of the JVP and participated in its activities as she had claimed, it found that she was not at risk of persecution for that reason. Accordingly, this ground of review must fail.
Alleged error regarding relocation
34.The Applicant complains of the RRT’s finding that it would not be unreasonable for her to relocate within Sri Lanka.
35.This finding was necessarily fatal to her visa application but it did not determine the application. What determined the application was the RRT’s findings that:
35.1the Applicant was not at risk of persecution by the government and its agents even if she supported or joined the JVP in the future; and
35.2as to her fear of harm from Somarathna, she and her family had not been persecuted as she had claimed.
36Accordingly, because the RRT’s finding regarding relocation was not determinative of her application, even if the RRT had made an error of law in making that finding (which it did not), such an error would not have been operative.”
In my view, the RRT's careful, detailed and logical examination of the claims by the Applicant exhibit probative logic and the findings that were made by the RRT are certainly within the scope of the RRT to find. Some of the references in the Applicant's contentions are references that have been taken out of context. When one looks at the full detail covered by the RRT of the evidence presented, in my view the findings are open to the RRT and exhibit probative logic.
In addition, the finding of the RRT that it was open or reasonably open to the Applicant to relocate within Sri Lanka is one that is fatal to this review. Again, the expression by the RRT of its logic in relation to this finding, in my view, exhibits probative reasons and was open to it to so find.
In conclusion, I find that there has been no error of law, let alone a jurisdictional error on the part of the RRT.
The decision of the RRT is one afforded protection under
s 474 of the Act and accordingly there is no alternative for me but to dismiss the application filed on 28 June 2004, as amended on
6 October 2004.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 8 June 2005
0
7
1