MZWQY v Minister for Immigration (No.2)

[2005] FMCA 181

MAGISTRATES COURT OF AUSTRALIA

MZWQY & ORS v MINISTER FOR IMMIGRATION (No.2) [2005] FMCA 181

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa.

Migration Act 1958 (Cth)

Applicants: MZWQY, MZWQZ, MZWRA & MZWRB

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: MLG 1166 of 2004

Delivered on: 27 January 2005

Delivered at: Melbourne

Hearing Date: 27 January 2005

Judgment of: Riethmuller FM

REPRESENTATION

Counsel for the Applicant: The first named applicant appeared in person

Counsel for the Respondent: Ms MacDonnell

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The applicants’ application be dismissed.

2. The applicants do pay the respondent's costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1166 of 2004

MZWQY, MZWQZ, MZWRA & MZWRB

Applicants

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an ex tempore judgment.

2. This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) made on 29 January 2001.  The first named applicant in this case came to Australia on 17 May 1999 with his wife and children on visitor visas valid for three months.

3. On 17 June 1999 the first named applicant lodged an application for a protection visa along with his family.  On 26 July 1999 a delegate of the minister refused to grant him a protection visa for which decision he sought review on 19 August 1999.  The matter was heard by the RRT which affirmed the decision of the delegate not to grant a protection visa.  This decision was notified to the applicants on 16 February 2001.

4. On 20 June 2001 the first named applicant was joined as a party in the Muin proceedings in the High Court. On 29 May 2002 the first named applicant filed a draft order nisi application in the High Court in accordance with leave granted by that court.  The order nisi was remitted to the Federal Court on 25 November 2002 and refused by Emmett J on 20 February 2004.

5. On 27 July 2004 the applicants brought the current application.  On first reading the matter, it appeared that it was a matter that was effectively dealt with by Emmett J in refusing the order nisi on

   
   

   20 February 2004.  However, for the reasons provided by the Counsel for the minister, I have not proceeded to determine this case on that basis.

6. Those reasons were that it was, at least today, unclear whether the dismissal of the order nisi was on the limited Muin grounds with an understanding that an application could be made again on other grounds.  The Minister, as a model litigant did not want to run the risk of having me determine the matter on that basis if such an understanding was present at the time.  The Minister proceeded to argue the matter should be dealt with in the usual way.  I accept that argument and proceed to deal with the matter as if there is no issue estoppel other than on the Muin point that arises from the orders of Emmett J.

7. The case concerns an applicant who was a high ranking Sri Lankan police officer who had been posted to the northern province where he had investigated crimes by members of the LTTE.  He had also been pointed to the terrorism investigation division in Colombo where he investigated crimes by members of the LTTE.

8. The first named applicant claimed to have received death threats in 1998 as a result of those investigations and to have been denied protection by a more senior police officer.  It was some time after this that he applied for visas to come to Australia with his family, and he took 21 days leave from the police force to travel to Australia.

9. He did not have enough money to travel at the time of the threats and remained in Sri Lanka until May 1999.  Shortly before his departure he noted on two occasions that a person on a motorbike appeared to be following him.  He said to the RRT member that if he returned to Sri Lanka he would be a threat to the LTTE even if he did not work for the police, and he feared that the LTTE would kill him.

10. The RRT, in its decision, set out the details of his case, although omitting some information that might identify the applicant from the face of the decision in accordance with section 431 of the Act.  The RRT generally accepted the first named applicant's evidence as to his employment history but rejected the proposition that he reasonably held continuing fear of persecution.

11. It appears that he was not transferred to the northern province for political reasons and the RRT accepted that he was not denied positions within the police force due to his actual or imputed political opinion.  It appears that in fact he gained promotions within the police force because of his knowledge of LTTE personnel and operations.

12. The RRT accepted that government officials, especially those with a knowledge of the LTTE, are among those who might be targeted by the LTTE.  It also concluded that such a risk is considerably higher in a war zone than in areas such as Colombo where the first named applicant had been residing prior to travelling to Australia.

13. It appears that unfortunately the lengthy absence from Sri Lanka has meant that the first named applicant's position with the police force will now be terminated as he has been absent for a long time without leave.  The RRT concluded that that would further reduce risk of harm to him at the hands of the LTTE.

14. The RRT stated that there was no independent evidence that the authorities would abandon witnesses following court cases if they had any real basis for fearing for their safety.  It concluded that the first named applicant was not likely to face a real chance of persecution as a witness against the LTTE as a result of his duties.

15. The RRT also concluded that even if the applicant faced a real chance of persecution as a witness in cases involving the LTTE suspects, such an action would not bring him within the terms of the convention in that such targeting would not arise from his political opinion or that imputed to him.  It seems that any targeting of him is as a result of him being a witness in relation to one or many crimes committed by others: as a result the RRT concluded that he did not have a well-founded fear of persecution for any convention reason.

16. The RRT spent some time outlining the evidence that it considered.  There appears to be little in the decision that one could attack on judicial review.  It is clear, however, that the first named applicant has a strongly held belief of a different state of factual findings and affairs to that found by the RRT.  Unfortunately for the first named applicant that is not a matter on which a judicial review can be founded.

17. The applicants’ application relied upon six grounds, none of which were particularised to relate to specific events in the hearing process in this case or specific findings.  The grounds were as follows:

    a)failing to properly interpret or apply the law;

    b)failing to give proper consideration to past instances of threats or intimidation;

    c)interpreting section 91s of the Act as a result of which it erroneously considered that it must find the applicant is not a person who has a well-founded fear of persecution for a reason stated in the Refugees Convention;

    d)failing to put to the applicant country information;

    e)considering submissions made by the Secretary of the Department of Immigration pursuant to section 423 of the Act, and

    f)denying the applicant procedural fairness.

18. I see nothing in the decision to indicate that the RRT did not understand the law with respect to the test that it applied under the Act. To the extent that that first ground referred to sections 91r or 91s of the Act, I note that those sections had not been inserted into the act at the time of the RRT's decision and therefore any argument on this basis must fail.

19. With respect to the second ground, it is clear that the RRT gave consideration to the evidence given by the first named applicant and the documents that he produced.  In substance, the first named applicant is complaining that the RRT made findings of fact that he does not agree with.  Those findings were, however, open to the RRT on the evidence that was before it.

20. The third ground relates to a failure by the RRT to place country information before the first named applicant for comment.  This ground fails as a result of the principles applicable with respect to country information.  The RRT is only required to discuss with the first named applicant the substance of this information which is adverse to his claims.  In any event, it is difficult to see how the outcome would have been different in this case.

21. The fifth ground relates to allegations of submissions made by the Secretary of the Department.  There is no reference in the material produced in the court book to any such submissions.  The Secretary does not generally give any submissions or written argument to the Registrar of the RRT.  In the circumstances, there is nothing upon which this ground can be based.

22. The final ground related to a denial of procedural fairness.  It is clear that the first named applicant was entitled to attend a hearing, and did so attend, and that prior to that, his solicitors at the time sent detailed written submissions dated 19 January 2001 (set out in the court book from page 123 to 126).  Those submissions included documents that the first named applicant relied upon.  There is nothing in the decision that is able to be pointed to by the first named applicant that came from a source other than the applicant that he was not given an opportunity to comment on, at least in substance.

23. In the circumstances, it appears to me that there is not an error of law which would found a judicial review and therefore the application ought to be dismissed.  I therefore dismiss the application.

    [Further argument ensued as to costs]

24. The applicants in this case have been unsuccessful in their application for judicial review.  The first named applicant is not a man of means, having come here from Sri Lanka, and is presently not working.  However, his case has been unsuccessful, and in one form or another, this is the second occasion on which he has been unsuccessful in judicial review proceedings.  It is certainly a sad case in that it appears the applicants will be returning to Sri Lanka, which has recently been struck by the disaster of the tsunami.  However, these events do not affect, as a matter of law, the outcome of the substantive decision, nor on balance should they stand in the way of a costs order which would normally follow the event in this type of case.

25. With respect to the amount of costs, I have regard to the scale in the Federal Magistrates Court Rules and the work that has been undertaken in this case. It appears to me that the sum of $6,500.00 dollars sought by the respondent is a reasonable sum in the circumstances.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate: 

Date: