MZWTH v Minister for Immigration - [2006] FMCA 88

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZWTH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 88

MIGRATION – RRT decision – protection visa – no jurisdictional error – applications dismissed.

Migration Act 1958, ss.424, 474 & 476
Migration Legislation Amendment (Procedural Fairness) Act 2002

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396

Applicant:

MZWTH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

MLG 1500 of 2004

Delivered on:

3 February 2006

Delivered at:

Melbourne

Hearing date:

20 September 2005

Judgment of:

O’Dwyer FM

REPRESENTATION

The Applicant:

In person (assisted by Interpreter,
Mr Wickramasinghe)

Counsel for the Respondents:

Ms Riley

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application for review filed on 22 November 2004 and amended by an amended application filed on 11 February 2005 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1500 of 2004

MZWTH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

In consequence of the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 the Refugee Review Tribunal (RRT) should be joined as second respondent.
By an application for review filed on 22 November 2004 and later amended in an amended application filed on 11 February 2005 the applicant seeks a judicial review of the decision of the RRT made on

5 October 2005, which decision affirmed an earlier decision of the first Respondent’s delegate made on 19 March 2004 to refuse to grant the applicant a protection visa.

Background and claims

The applicant is a national of Sri Lanka of Singhalese ethnicity who arrived in Australia on 29 October 2003 on a visitor’s visa.
The application to remain permanently in Australia was made on the grounds that the applicant was a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951 (“the Convention”) as amended by the 1967 Protocol relating to the Status of Refugees (“the Protocol”) the Refugees Convention. The applicant set out her claims in a statement attached to her protection visa application as follows:
(i)she was a Singhalese woman who lived and worked in Colombo;
(ii)she was a Police Sergeant in the Sri Lankan Police Force, and had been a police woman for 16 years;
(iii)on 8 June 2003, she was visiting her parents in the evening when she overheard screaming outside;
(iv) the applicant went outside and saw a white Pajero parked nearby and three men holding a Mr Jayalilake at gun point;
(v)one of the men shot Mr Jayalilake and told the applicant not to tell anyone or she would die;
(vi)the other two men said that they were sent by the Chief Minister of North Central Province, a Peoples Alliance Party (PA) member, and if the applicant went to the police about the incident they would destroy her whole family;
(vii)with the help of other villagers, the applicant took Mr Jayalilake to the hospital but he died on the way;
(viii)the applicant and some other villagers went to the police station and told them what had happened but the applicant did not mention anything about the Chief Minister;
(ix)since then, the applicant has had many threatening telephone calls, saying she will be killed if she says anything more to the police;
(x)on 29 July, two armed men came to the house looking for the applicant;
(xi)when her parents said that she was not there, the men smashed the furniture and threatened to kill them if they said anything;
(xii)the applicant lived with her friends and relatives until she left the country;
(xiii)the applicant worked for the presidential and prime minister’s security units when members of the UNP held those offices;
(xiv)the applicant’s father was a strong UNP supporter;
(xv)the applicant has been branded as a UNP supporter;
(xvi)the Chief Minister belongs to the PA, the political enemies of the UNP; and
(xvii)State protection is not available.

The Tribunal hearing

At the Tribunal hearing, the applicant said, among other things:
(i)after working in the presidential and prime ministerial security units, she had been transferred to headquarters as a sort of punishment;
(ii)she was promoted to sergeant in 2000 and assigned as a sports coach within the department;
(iii)she had participated in sporting events with the support of the police department, including the World Masters Games in Melbourne in October 2002;
(iv)she returned to Sri Lanka after that event, and then returned to Australia in 2003 because of the problems she faced in Sri Lanka;
(v)she participated in the Veterans’ Athletics Meet in Kandy in Sri Lanka in August 2003;
(vi)she was the only witness to the killing of Mr Jayalalike;
(vii)she could not remember if she gave the police a description of his assailants;
(viii)when asked why the assailants had told her they were from the Chief Minister’s office she replied that it was to threaten her;
(ix)she did not have a copy of the report she gave to the police;
(x)she did not report the threats against her to the police;
(xi)the police had not identified the assailants;
(xii)she participated in the Health Pact Masters Games in Canberra, and applied for protection after that, even though she came to Australia solely to save her life;
(xiii)letters from her sister had been translated in Sri Lanka because, after receiving them, the applicant had sent them back to her sister in Sri Lanka for translation and the sister had then returned them to Australia without an accompanying letter; and
(xiv)when it was put to her that there was no evidence linking the assailants to the Chief Minister’s office she replied that she had made her own enquiries and ascertained that they were from his office.

The Tribunal’s decision

The Tribunal did not accept that the applicant had experienced persecution in the police force or because of her duties in the security units of the police force. Since being transferred to police headquarters, the applicant had been promoted to the level of sergeant and was supported by the police department in her sporting activities. The Tribunal did not accept that the applicant had been harmed because of her own or her family’s association with the UNP.
The Tribunal accepted that Mr Jayalilake was killed by unknown gunmen. However, the Tribunal did not accept that the applicant was the sole witness. The newspaper report referred to “neighbours” witnessing the event. The Tribunal did not accept that the gunmen would have told her they were from the Chief Minister. The Tribunal did not accept that the applicant’s description of the event was credible, and did not accept that she would have reported the event but failed to provide details about what the assailants allegedly said to her.

The Tribunal did not accept that the assailants would have left unharmed a person capable of identifying them, or would have told her they were associated with a high profile political figure.
The Tribunal found related evidence of the applicant unconvincing and did not accept that she went into hiding. The applicant said that she continued normal police duties after the incident and participated in a public sporting event in Kandy in August 2003. The Tribunal considered that the applicant’s claim to have ascertained that the assailants were associated with the Chief Minister was inconsistent with her claim to have not known the identity of the assailants and to have been inconsistent with a genuine fear for her own safety.
If, contrary to the Tribunal’s findings, the applicant was exposed to possible future harm arising from the shooting, the essential reason for it would be to prevent her giving evidence in a criminal trial or investigation. As such, the Tribunal considered that the harm would not be for a Convention reason, and, in any event, the applicant could avail herself of state protection.

Grounds of the application

The applicant says in ground 1 of her amended application that the Tribunal failed to consider the applicant’s express claim that she was at risk of persecution because of her membership of a particular social group, namely, the UNP. The applicant at no stage claimed to be a member of the UNP. She said her parents were ardent supporters of the UNP and she said that she herself had been branded as a UNP supporter because of her association with the former UNP government as a police security officer. The applicant said that senior police officers did not care for her. She also said her parents had had their house trashed after she had left home.
The Tribunal did not accept that the applicant had experienced harm in the past due to her security duties for UNP leaders, or her actual, or perceived opinion or because of her family links to the UNP.

The Tribunal considered that the applicant’s father may have experienced mistreatment from supporters of a rival political party but did not accept that the applicant was the cause of the mistreatment or that she herself had experienced mistreatment. The Tribunal considered that the fact that the applicant had been promoted after she moved to police headquarters, and was supported in her sporting activities by the police department, indicated that she was not harmed by the police force by reason of her actual or imputed political opinion. In these circumstances, the Tribunal concluded that the applicant did not face a risk of harm by reason of her real or imputed political opinion. Accordingly, the Tribunal clearly considered whether the applicant faced persecution by reason of her links to the UNP.
The applicant says in her amended application that the Tribunal failed to consider that being transferred to police headquarters was a form of punishment. The Tribunal considered that the applicant was promoted and supported in her sporting career by the police department, so she did not suffer any actual harm from the police department. In my view, the Tribunal quite properly rejected the claim that the applicant was harmed by being transferred to police headquarters. It was a finding of fact open to the Tribunal, and one which this Court is unable to challenge.
The applicant says in her amended application that the Tribunal failed to consider that the applicant’s father was a well–known UNP party supporter and his house was trashed in 1994. On the contrary, the Tribunal clearly did consider that matter and accepted that it may have happened. The Tribunal found that the applicant was not the cause of any such mistreatment and had not experienced it herself. Again these are findings of fact within the purview of the Tribunal which this Court is unable to challenge.
The applicant further states in her amended application that the Tribunal failed to consider the assault on the applicant’s neighbour and the further threats against the applicant. A reading of the Tribunal’s decision confirms it did consider the murder and the alleged threats but did not accept that any threats were made against the applicant.
In her amended application the applicant states that the Tribunal failed to consider the attack on her home in July 2003, an attempt to set fire to the house, her brother’s departure for Korea in 1994 and the threats from persons associated with the murder. The Tribunal did not accept that the applicant’s parents’ house or her sister’s house were visited or damaged following the murder. These assertions were clearly considered. The Tribunal noted that at the hearing, the applicant gave evidence that her brother had gone to Korea after the 1994 election. This was said in connection with the alleged difficulties faced by the applicant in connection with her and her family’s association with the UNP. The Tribunal rejected the claim that the applicant faced harm by reason of her links to the UNP, and, in so doing, rejected the claim that the brother’s departure for Korea in 1994 was a significant factor in the applicant’s own circumstances. The Tribunal expressly rejected the claim that threats were made against the applicant in connection with the murder. In these ways, the Tribunal clearly demonstrated that it considered the matters mentioned. Its findings were open to it on the evidence and such findings are beyond challenge by this Court.
The applicant says in her amended application that the Tribunal committed an unspecified jurisdictional error by marginalising the applicant’s claims by putting information to her that Sri Lanka is a democratic country with a judicial and law enforcement process.
The Tribunal assessed the applicant’s claims on their merits but then went on to find that, even if contrary to its conclusions, the applicant had reason to fear the neighbour’s killers, the harm would not be Convention related but criminal and, in any event, state protection was available to the applicant. This does not indicate that the applicant’s claims were marginalised, but rather that they were put in their proper context.
The applicant states further that she was denied natural justice by reason of her not being given time to lodge additional documents, particularly in relation to her reasons for delaying seven weeks before lodging her protection visa application. The delay in lodging the application was raised by the Tribunal at the hearing and the applicant gave her reasons for the delay. It is difficult to see what else the applicant might have said in this connection and the applicant had not indicated what else she would have said if given more time. Nor did the applicant ask for more time, or lodge any documents after the hearing, even though the hearing was on 5 August 2004 and the decision was not handed down until 29 October 2004.
It is of course for the applicant to put such information to the delegate and the Tribunal as she wishes. There was no obligation to give the applicant more time, especially as she did not ask for additional time. In any event, the application to the Tribunal in this matter was filed on 5 April 2004 and, accordingly, the Migration Legislation Amendment (Procedural Fairness) Act 2002 provided that the provisions of Div.4 of Pt.7 of the Migration Act 1958 (the Act) were exhaustive of the requirements of natural justice in relation to the matters with which they deal. In my view, there is no substance in the natural justice ground and that common law natural justice has been excluded in any event.
The applicant contends that the Tribunal erred by taking into account irrelevant material being DFAT reports to the effect that persons of all political parties can gain access to police protection. I am of the view that this material is clearly relevant.
A further contention by the applicant is that the Tribunal failed to take into account relevant matters; namely, that the police did not protect people associated with the SLFP or UNP and that the police actually participated in the persecution. The findings of the Tribunal make it clear that it rejected these allegations. It is largely for decision–makers to decide what factors are relevant. The individual items of evidence relating to particular matters are not relevant considerations such that a failure to mention them might constitute a jurisdictional error (see Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [1] and [79]).
The applicant’s contention that the Tribunal disregarded anonymous letters provided to the Tribunal ignores the fact that the anonymous letters actually suggested that the applicant’s claims were false. In any event, the Tribunal rightly, in my view, disregarded that material because, being anonymous, it could not be tested.
The applicant also contends that the Tribunal failed to put inconsistencies to the applicant. However, the identification of inconsistencies is a matter of the Tribunal’s evaluation of the evidence put forward by the applicant. It is not “information” within the meaning of s.424A of the Act as suggested by the applicant. This issue has been authoritatively settled by the Full Federal Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24].
The applicant also contends that the Tribunal failed to comply with s.424A by failing to provide the applicant with an opportunity to provide further information about her subjective fears. This is not a matter that arises under s.424A. The question whether the Tribunal was satisfied that the applicant had a subjective fear was a matter of the evaluation of the evidence. The Tribunal’s finding in this regard was open to it and is beyond challenge in this Court.
The applicant also contends that country information relied on by the Tribunal that persons of all political affiliations can generally gain access to police protection was irrelevant material. The applicant has not explained why that material would be irrelevant. On the contrary, I am of the view that it was relevant, because it indicated that police protection would be available, if contrary to the Tribunal’s findings, the applicant was in need of police protection. In any event, the Tribunal found that the applicant did not require police protection, a finding open to it on the evidence.
The applicant contends that the Tribunal failed to consider whether the applicant was at risk because of her membership of a particular social group. The applicant said at the hearing that she had two claims in this regard; one concerning her general police duties and how they were allegedly affected by her perceived affiliation with the UNP, and the other was witnessing the murder allegedly orchestrated by a member of a political enemy of the UNP. The Tribunal clearly dealt with both of those claims in considerable detail. Section 476(1)(e) of the Act, to which the applicant refers, was repealed when the privative clause provision was enacted and is irrelevant in this proceeding.
The applicant contends that the Tribunal erred in failing to put certain matters to the applicant. This contention is not entirely clear. Nevertheless, it is apparent that the Tribunal discussed the relevant matters with the applicant in detail.
The applicant concludes her contentions with the broad allegation that the Tribunal failed to conduct a review. This is clearly not correct. The Tribunal dealt with the matters raised by the applicant with, I might say, care and in considerable detail.
The decision under review is a privative clause decision under s.474 of the Act and is accordingly afforded protection unless it can be demonstrated that a jurisdictional error has been made by the Tribunal. In my view, the Tribunal has not erred in any manner, let alone made a jurisdictional error. Accordingly, the application filed on 22 November 2004 and amended by an amended application filed on 11 February 2005 should be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Associate:

Date: 3 February 2006