Mzwro v Minister for Immigration

[2005] FMCA 1155

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWRO v MINISTER FOR IMMIGRATION [2005] FMCA 1155

MIGRATION – No jurisdictional error.

Judiciary Act 1908, s.39
Migration Act1958

Applicant: APPLICANT MZWRO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: MLG 1276 of 2004

Judgment of: Phipps FM

Hearing date: 5 August 2005

Date of Last Submission: N/A

Delivered at: Melbourne

Delivered on: 5 August 2005

REPRESENTATION

Counsel for the Applicant: Mr Cheung

Solicitors for the Applicant: David K Kin Cheung

Counsel for the Respondent: Mr Gray

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. Applicant pay the respondent's costs fixed at $6000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1276 of 2004

MZWRO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1908 to review a decision of the Refugee Review Tribunal.  The applicant is a citizen of Sri Lanka who arrived in Australia on 10 May 1999.  On

   
   

   4 June 1999, he lodged an application for a protection visa.  On 31 January 2000, a delegate of the first respondent refused to grant the visa.  On 2 March 2000, the applicant applied to the Refugee Review Tribunal for review of that decision.  By a decision made on 7 February 2002, the tribunal rejected the review and determined to affirm the decision not to grant a protection visa.  The applicant applied for review of that decision by way of application for prerogative writ on 6 October 2004.

2. The applicant claims to fear persecution as a result of his role as a journalist critical of the Peoples Alliance government which was elected in 1994.  Amongst his claims were that he was a regional correspondent in the service of leading Sri Lankan newspapers.  He claimed that after the election of the PA government in 1994, he wrote stories critical of the government in defiance of requests from pro‑government politicians that he not write about instruments which were detrimental to the government and which might place the government in a difficult situation.  He claimed that he wrote under a pseudonym but his chief editor knew that he was writing personally.

3. He claims that on 11 May 1996 he was abducted from a public bus by four people posing as police officers.  They assaulted him and warned him to stop criticising the government and then abandoned him on a beach at 10.30 pm at night.  He claimed he made a complaint to the police but they refused to entertain the complaint.  He claimed that his editors also complained to the government, but the applicant said in his claim that he could not get any protection because they said it was a police matter.  He claimed that on 30 August 1996, thugs came to his house and damaged household goods.  They said they would kill him.  He claimed that his father fell ill as a result of this incident and passed away.

4. He claimed that he and another well-known journalist were under death threats as a result of their writing about the civil war.  He claimed that in January 1999, the government had poor results in some council elections after having been criticised in newspaper reports. The government targeted independent newspapers and journalists. He claimed that underworld gangs were deployed to eliminate targeted journalists like him and he claimed that an attempt was made to kidnap and kill his colleague and room mate who was a well-known journalist.  He claimed that they came to kidnap both of them but since he was away he escaped.  He claimed that a very good friend of his was working in the National Intelligence Bureau and informed him that a contract had been given to an underworld thug, who he named, to eliminate him.  He advised the applicant to leave the country, that is, the friend, and the applicant took the advice and decided to leave.  He claimed that that person, that murderer, killed several people who were engaged in criticising the government.

5. He produced documents from Asia Capital Ltd where he worked as a computer analyst and got a visa to Australia and he arrived in May 1999.

6. The applicant provided the tribunal with newspaper cuttings relevant to the issue of press freedom and the fate of some journalists and he also supplied a photocopy of a card allegedly issued by a particular firm of publishers on 31 January 1999 with the applicant's photograph, designating him as a regional reporter.  The tribunal findings basically were that it did not accept the applicant's claims.  It accepted that he was a journalist but not to the extent to which he claimed.  It noted that the applicant had stated that he had been employed as a full‑time journalist by the publishers, which I have already referred to, but that he also worked for other papers and had another job as a systems analyst.  His passport indicated his profession was computer executive, more in keeping with his systems analyst claim.  The tribunal said it had concerns about the authenticity of the card he produced since it misspelt the word "publishers" and spelt it "publisers" and repeated the error on the rear of the card.  The tribunal considered it inconceivable that such cards with misspellings would be allowed to circulate even if printed in error.  The date was 31 January 1993 and there was an opportunity to fix the error.

7. The tribunal in its reasons said that it had asked the applicant why he had not produced examples of the articles which he wrote, and the applicant had said that he had posted them but lost them.  The tribunal found this explanation totally unsatisfactory as it considered it would not be difficult for a journalist to provide copies of his output and he had ample opportunity to reobtain what might have been lost in the post at some point.

8. The tribunal considered that the nature of the applicant's claims about the nature of his journalism were inconsistent.  He first claimed he was writing on regional issues but later stated he was also writing special reports and that he wrote for about 15 of them, and then having stated that he was writing under a pseudonym in his initial claims, he did not mention this aspect at all in the hearing.  The whole basis for the claimed interest in him was that he was the recognised author of the articles.  The tribunal found, for reasons that it gave, that he had concocted his association with two famous cases of two journalists who were named.  The tribunal concluded that it accepted that the applicant was employed as a regional reporter and found that he greatly inflated his role as a journalist and the importance and content of his writings.

9. The tribunal did not accept that he was ever threatened or abducted or that his house was damaged as a result of journalistic activities.  The tribunal considered that the depth of his fear of persecution was indicated by him having claimed that he thought he was being pursued and was a target.  He obtained a visa to leave the country and did not leave it for three months.  The tribunal then concluded that it accepted that there had been incidents where journalists have been harassed and attacked as the applicant's newspapers cuttings as well as other sources indicate.  The tribunal found that the characteristics of the applicant in the profession of journalist led to the conclusion that the chance that he would be persecuted in the convention sense for exercising that profession and thus by implication would be persecuted for an expression of his political opinion now or in the foreseeable future was remote.

10. In the contentions of fact and law and oral argument put by Mr Cheung who appeared for the applicant, there are three grounds advanced. The first is that it is alleged that there is a breach of s.424A of the Migration Act 1958. That requires that the tribunal, in a way that it considers appropriate in the circumstances, give to the applicant particulars of any information that the tribunal considers would be the reason or part of the reason for affirming the decision that is under review. The information which it is alleged the tribunal should have given to the applicant and did not is that contained towards the end of the tribunal's reasons where it says this:

    The tribunal accepts that there have been incidents where journalists have been harassed and attacked as the applicant's newspaper cuttings as well as other sources indicate.  However, the tribunal finds that the characteristics of the applicant in the profession of journalist lead to the conclusion that the chance that he would be persecuted in the convention sense for exercising that profession and thus by implication be persecuted for an expression of his political opinion now or in the foreseeable future is remote.

11. The information which it is alleged has not been given is incidents where journalists have been harassed which are contained in sources other than the applicant's newspaper cuttings. The requirement to give information under s.424A only exists when the tribunal considers that the information is the reason or part of the reason for affirming the decision that is under review. The information that there are other sources that journalists have been harassed and attacked does not have that characteristic. It is not part of the information which the tribunal used as part of its reasons for affirming the decision. On the contrary, the tribunal was referring to material which was favourable to the applicant's claim, that is, that journalists in Sri Lanka have been harassed and attacked. That was not something which was in dispute. What was the issue was whether the applicant was one of those journalists who had been attacked and harassed to such an extent that he had a well‑founded fear of persecution if he returned to Sri Lanka. The tribunal found, for reasons attributable to the applicant's evidence, that it did not accept large parts of what the applicant claimed. Based on those findings of fact, the tribunal concluded that he was not a person who was likely to be attacked or harassed to the extent that it would amount to persecution. The information contained in other sources that journalists have been harassed and attacked was not one of the reasons for the tribunal making its decision.

12. I should add that although it was not argued, the other sources, although not identified, would appear to be the class of information which is covered by sub-s.424A(3), that is, information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.

13. The tribunal in its reasons said that it had before it the department's file.  I note that in the record of decision by the delegate, there is reference to country information, for instance, the United Nations Department of State's Sri Lankan country report on human rights practices for 1998, a human rights watch report 1999 and an Amnesty International report 1999.  It is that type of material which the tribunal would have been referring to when it described as other sources that come within the exception contained in sub-s.(3).  It is a further reason for rejecting the argument.  The principal reason for rejecting the argument is that it was not information which was part of the tribunal's reasons.

14. The second and third grounds which are advanced can be dealt with shortly.  Both of them allege discrepancies in the tribunal's fact‑finding process.  The tribunal had concerns about the authenticity of the journalist’s card.  It is alleged that that is inconsistent with the tribunal accepting that the applicant was a journalist.  Mr Cheung in his submission referred to the fact that in Sri Lanka, as should be well known, English is not the first language.  A mistake in spelling on a card such as that produced may not be remarkable.  But it was alleged there is an inconsistency.  The second is that there is an inconsistency in the tribunal accepting that the applicant was a journalist, also accepting that journalists are arrested and yet finding that the applicant did not have a well‑founded fear of persecution based on his being arrested or attacked because of his criticism of a political party.  Each of those are matters of fact which it was for the tribunal to decide.  It is doubtful whether it can even be alleged that there is any inconsistency in the tribunal's findings, but even if it might be thought there was some inconsistency, they are not such as could amount to a jurisdictional error.  The application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: 

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