MZWSJ v Minister for Immigration and Multicultural Affairs

[2006] FCA 332

FEDERAL COURT OF AUSTRALIA

MZWSJ & Anor v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 332

MZWSJ & MZWSI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VID 1364 OF 2005

NORTH J
10 MARCH 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1364 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWSJ
FIRST APPELLANT

MZWSI
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

10 MARCH 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

(1)The name of the first respondent be amended by deleting the words "and indigenous";

(2)The appeal is dismissed;

(3)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 1364 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWSJ
FIRST APPELLANT

MZWSI
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	NORTH J
DATE:	10 MARCH 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Phipps delivered on 13 October 2005.  Phipps FM dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 3 December 2003.  The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs (the first respondent) not to grant protection visas to the appellants.  The delegate's decision was made on 17 September 2002.

2. The appeal is heard by a single judge pursuant to a direction by the Chief Justice, under s 25(1A) of the Federal Court of Australia Act 1976 (Cth), made on 23 December 2005.

3. The appellants are a mother and son from Sri Lanka who arrived in Australian on 2 August 2002.  I will refer to the mother as the appellant because the son's appeal depends on the mother's appeal.  The appellant is a Singhalese who follows the Buddhist religion.  The appellant claimed a fear of returning to Sri Lanka on the grounds of her political opinion. The appellant claimed that she had been politically active from 1976 when she joined the Sri Lanka Women's Association conducted by the Sri Lankan Freedom Party.  The appellant claimed that she later joined the Sri Lanka Muslim Congress (SLMC) in 2002 because Mr Suresh Faleel, who contested the 2002 local government election, was a close friend of hers.  The appellant claimed that her support of Muslim candidates created opposition to her from Singhalese and Buddhist supporters of other parties.

4. The appellant claimed that she was harassed by various thugs after the March 2002 elections and that she had to leave home and live with a cousin as a result.  During this time her house was searched and her brother, who was caring for the house, was threatened.  When the appellant heard of these events, she decided to leave to come to Australia.  Then, in August 2002, Mr Faleel was assassinated.  As a result, the appellant claimed that she feared, if she returned to Sri Lanka, she would be the target of political harassment.  These claims were set out in writing in the visa application form.

5. A hearing before the Tribunal was fixed for 5 November 2003.  On the day of the hearing, the appellant did not attend the Tribunal but the Tribunal received a medical certificate stating that the appellant had been seen by a doctor on that day and she was suffering from a medical condition and was unable to work.  The Tribunal adjourned the hearing until 24 November 2003 and advised the appellant of the adjourned hearing date.  The appellant did not attend on 24 November 2003 and offered no explanation for her absence.  The appellant provided no further information in support of her application, other than the material in her visa application and the application for review.

6. The Tribunal determined to proceed under s 426A of the Migration Act 1958 (Cth) (the Act) without taking any further action to enable the appellant to appear before it. The Tribunal then published written reasons for its decision on 3 December 2003. After setting out the claims and the background to the hearing, which have just been recited, the Tribunal examined in detail some country information relating to the general circumstances and history in Sri Lanka.

7. In its findings and reasons, the Tribunal accepted from the country information that Mr Faleel was an SMLC candidate in the March 2002 election and was murdered in mid August 2002.  The Tribunal then said:

   There is however no material, other than the unsubstantiated written assertion of the applicant herself, to show that she herself was an SMLC supporter.  Similarly beyond her statement, there is nothing to show any past link at all between her and Mr Faleel and the March 2002 election campaign, or her role in that campaign.  Finally, whilst she asserts she had herself been the subject of harassment because of support for Mr Faleel, there is nothing beyond her assertion to show this was the case. 

8. The Tribunal then set out the lines of questioning which it would have pursued had the appellant appeared at the hearing.  In particular, the Tribunal indicated that it would have asked about the identity of the persons the appellant believed had harassed her in the past.  It would have raised country information, previously reviewed, which suggested that both government and opposition were committed to reducing and eliminating post election violence.  The Tribunal said it would have raised with her the country information which suggested Sri Lanka has a functional police force and judiciary.  The Tribunal also elaborated a number of further issues upon which it would have questioned the appellant. 

9. The Tribunal then concluded as follows:

   The applicant has not provided any further information in support of her claims despite the opportunity to do so at or after 26 September 2002, when her Tribunal application was lodged.  In particular, despite two separate hearings being arranged for her to provide further information, she has not taken the opportunity to do so, either by submitting supporting material or attending a hearing in person.  She has therefore not provided the Tribunal with the opportunity to explore critical aspects of her claim with him, and a number of relevant questions are therefore left unanswered.

   The fundamental basis of her claim appears to be she fears persecution by thugs in Sri Lanka because of her previous support for a deceased SLMC candidate at the March 2002 local elections.

   There is however simply nothing to support her assertion that she was in any way associated with that candidate, or that she was ever a supporter of the SLMC.  Similarly there is nothing to support her claim that she had been harassed or threatened by politically motivated thugs, or forced to go into hiding at a relatives (sic) house to avoid such harassment and threats.  Finally there is no material to support her assertion that her brother had been harassed or threatened by politically motivated thugs as claimed.

   In the light of the material currently available to it, the Tribunal is not satisfied the applicant is or was a SLMC supporter, or that she or her brother have been harassed or threatened because of her political associations or actions.

   The applicant also asserts that if she returned to Sri Lanka, she could be subjected to serious harm from members of her own Sinhalese community angry that she supported a Muslim candidate.  Given its finding that there is no material on which the Tribunal could be satisfied she was or is a supporter of the SLMC, the Tribunal does not accept there is anything more than a remote possibility that she would face such harm.

10. The Tribunal then went on to explain an independent basis for its decision.  It said:

    The Tribunal would also note that even if the applicant did face harassment from criminal elements in the community (for whatever reason) on return to Sri Lanka, country information set out above (particularly the investigation and effective detention of suspects for the Faleel murder) suggests the existence of a functioning police and judicial system, which would be available to the applicant.  The Tribunal is satisfied that those systems would provide the applicant with effective state protection, sufficient to remove any real chance of serious harm.  The Tribunal is also satisfied there is nothing to indicate that her access to those systems would be denied, or in any way restricted because of a Convention related reason, or any other reason.

11. The Federal Magistrate rejected the application for review on the basis that the application for review, whilst alleging jurisdictional error, gave particulars which amounted to no more than an allegation that the Tribunal made wrong findings of fact.  The Federal Magistrate said that the Tribunal was entitled to make the fact findings which it did and that there was no basis for review of the decision of the Tribunal. 

12. The Notice of Appeal sets out the grounds of appeal to this Court as follows:

    2.The grounds on which the Appellant seek orders under section 39B of the Judiciary Act, in relation to the decision are as follows: -

    A.    There was an error of law in the Judge’s decision constituting Jurisdictional error.

    3.The Federal Magistrate should have found that both these findings did not have the necessary evidentiary basis and as a consequence the decision of the RRT was without jurisdiction.

    4.The Federal Magistrate erred in finding that the errors in the fact finding process of the RRT did not amount to failure to exercise jurisdiction and/or that other findings in the decision overcame the decision’s shortcomings.

    5.The Federal Magistrate should have found that the Refugee Review Tribunal made an error going to jurisdiction or failed to exercise jurisdiction.

    The reference to ‘both these findings’ in paragraph 3 is not further explained.

13. In addition, the appellant filed contentions of fact and law which, after reciting again the facts upon which the appellant relied before the Tribunal, stated as follows:

    10.I disagree with the decision of the tribunal and say the tribunal confirms that Mr Faleel was an SLMC candidate at the March 2002 election wand (sic) was murdered in August 2002.  How can the tribunal say there was nothing to support my story that I was in any way associated with the candidate.  Even if I did appear at the tribunal, I would have provided the same information.  The tribunal could have asked me to provide more information and I would have done that.  The tribunal then goes on to say that there is nothing to support my claim that I had been harassed or threatened by politically motivated thugs or forced to go into hiding.  Once again if I appeared at the hearing, I would have repeated that I had been harassed and threatened and I would have nothing to support it except my word.  The same applies to the threats made by my brother.  I can only repeat what information he told me.

    11.The tribunal is also wrong when it says in the light of the material currently available, it is not satisfied that I was a supporter of the SLMC.  There is no evidence to contradict this fact.  The tribunal gives no reason why it believes I was not a supporter of the SLMC.  If there was something in the original material provided to the tribunal the tribunal is obliged to state why I could not have been a supporter of the SLMC.

    12.I also repeat what I told the Magistrate and that is I did not appear at the second hearing because I was unwell and was therefore unable to attend.  The tribunal has made an error by making its decision without having heard evidence from me.

14. At the hearing of the appeal, the Court explained the distinction between a hearing of the merits of the appellants’ case and judicial review of their case.  Both appellants were asked if they wished to add anything further to the documents already provided.  The appellant indicated only that it was her wish to stay in Australia in order to continue her son's education.  Her son addressed the Court and relied upon the written material already provided to the Court. 

15. In my view, the Magistrate made no error in concluding that the Tribunal had not fallen into jurisdictional error.  The Tribunal was entitled to proceed on the evidence which was before it.  It had, as a matter of fairness, given the appellant a chance to attend a hearing on a second occasion and no excuse or reason was given to the Tribunal for the appellant's failure to appear on the second occasion.  The Tribunal took the trouble to explain in its written decision, the lines of questioning which would have been raised by it had the appellant appeared.  That explanation provides a perfectly reasonable approach to the fact-finding function.  The appellant seeks to argue on the appeal that the Tribunal was bound by her written statement to find in her favour.  The appellant seems to say that her assertions, being uncontradicted, left the Tribunal with no option but to decide in her favour.  Such an argument is untenable.  In particular, it is unavailable where the Tribunal has taken the trouble to outline the lines of questioning which would have been appropriate had the appellant attended.

16. For these reasons the appeals must be dismissed. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             10 March 2006

Counsel for the Appellants:	Appeared in Person
Counsel for the Respondent:	S. Hay
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	10 March 2006
Date of Judgment:	10 March 2006