MZWXM v Minister for Immigration
[2005] FMCA 1670
•15 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWXM & ANOR v MINISTER FOR IMMIGRATION | [2005] FMCA 1670 |
| MIGRATION – Visa – protection visa – application for review of decision of Refugee Review Tribunal – the Tribunal’s factual findings – application dismissed. |
| Judiciary Act 1903 (Cth), ss.31B, 39B Migration Act 1958 (Cth), ss.36, 36(2), 36(2)(b), 91R(2)(a) |
| Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 Minister for Immigration & Multicultural & Indigenous Affairs v VBAO of 2002 [2004] FCA 1495 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 VBAS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 212 VJAF v Minister for Immigration & Multicultural & Indigenous Affairs 2005 FCAFC 178 (38 August 2005) |
| Applicants: | MZWXM & MZWXN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 127 of 2005 |
| Judgment of: | Connolly FM |
| Hearing date: | 7 October 2005 |
| Date of Last Submission: | 7 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 15 November 2005 |
REPRESENTATION
| Counsel for the Applicants: | Self-represented |
| Solicitors for the Applicants: | Not applicable |
| Counsel for the Respondent: | Ms S. Moore |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicants pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 127 of 2005
| MZWXM & MZWXN |
Applicants
And
| MINISTER FOR IMMIGRATION & INDIGENOUS & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicants on 1 February 2005 seeking judicial review of the decision of the Refugee Review Tribunal on 10 December 2004 to affirm the decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs to refuse to grant protection (class XA) visas.
The history
The applicants are a husband and wife, and are citizens of Sri Lanka. They arrived in Australia on 23 July 2003 and lodged an application for protection (class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs pursuant to the Migration Act 1958 (Cth) on 14 August 2003. As the wife relies on the claims of her husband, he shall hereinafter be referred to as “the applicant”. Pursuant to section 36(2)(b) of the Migration Act in respect to applicants who are members of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations.
The applicant claimed that he can not return to Sri Lanka as he would face persecution and he feared for his life. The applicant advised that his daughter and his son-in-law moved to Australia in 1998 because of harassment suffered by his son-in-law in Sri Lanka. The applicant claimed that after his daughter and son-in-law left Sri Lanka, where they had been living with the applicant, the applicant was harassed and threatened by the same persons who wanted to know where his son-in-law was. The applicant also claimed that he was associated with persons in the United National Party (“UNP”) and that he had actively supported the UNP, and as a consequence his political opponents hated and harassed him. The applicant claimed that a bus driver had deliberately run into his vehicle in January 2000 with the intention of harming the applicant, and as a result the applicant suffered injuries. There were court proceedings in the local Magistrates’ Court in 2003 as a result of the crash, and the applicant claimed that during same he was threatened by people who told him not to come again to the hearing, and that as a result the applicant became afraid for his life and left Sri Lanka for Australia. The applicant also claimed that his dog had been poisoned and that the windows of his motor car had been smashed.
On 20 November 2003, a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant the protection visas; the applicants applied for review of that decision by the Refugee Review Tribunal (“the Tribunal”) on 19 December 2003.
In the decision made by the Tribunal on 10 December 2004, the Tribunal affirmed the decision of the delegate not to grant the protection visas. The decision was notified to the applicants through their representative on 7 January 2005. The Tribunal was not satisfied that the applicant faced a real chance of persecution should he return to Sri Lanka, and therefore the Tribunal found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol). Consequently the applicant did not satisfy the criterion under section 36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) for the purposes of a protection visa; nor did his wife satisfy the necessary criteria as her application was dependent on the success of her husband’s. Specifically, the Tribunal found that:
a)any threats of harm or level of aggression directed to the applicant by those persons seeking his son-in-law did not amount to “serious harm” within the meaning of s.91R(2)(a) of the Migration Act, and that there is not a real chance that he would be harmed by those people should he return to Sri Lanka;
b)it rejected the applicant’s assertion that the motor vehicle collision in which he was involved in January 2000 was a deliberate attempt on his life, and found that there was no connection between the collision and an attempt to harm the applicant;
c)the applicant was a “sympathiser” of the UNP, rather than being more directly involved;
d)no threats of harm or death were directed against the applicant by reason of any involvement or imputed involvement with the UNP;
e)the applicant was not threatened with harm in respect to the court proceedings arising from the motor vehicle collision;
f)if the incidents relating to his dog being poisoned and his car windows being smashed had occurred, they were acts of vandalism and not related to any political opinion held by the applicant or imputed to him; and
g)it did not accept that the murder of a High Court judge in Sri Lanka establishes that the applicant would be unable to access state protection in Sri Lanka.
On 1 February 2005, the applicant lodged an application and supporting affidavit in this Court, being MLG 127 of 2005, pursuant to section 31B of the Judiciary Act 1903 (Cth), for review of the Tribunal’s decision. The applicant claimed that the Tribunal’s decision was affected by jurisdictional error. On 21 February 2005 Registrar Mussett gave directions for the filing of documents and for the matter to be set down for hearing.
The applicant filed contentions of fact and law on 18 May 2005, claiming that the Tribunal had committed jurisdictional error. Summarily, the applicant submitted that:
a)the Tribunal erred in finding that the claimed threats and harm suffered by the applicant by those persons who had previously harassed his son-in-law, did not amount to serious harm;
b)the applicant did suffer serious harm;
c)“the government was unable or unwilling to protect [the applicant] from persecution”.
The respondent’s contentions of fact and law, which were filed on 14 June 2005, rebutted the applicant’s contentions, arguing there was no jurisdictional error or error of law by the Tribunal and the application should be dismissed with costs. The respondent submitted that:
a)the applicant has not raised any allegations of errors of law for consideration by the Court, and that the only allegations relate to the Tribunal’s factual findings;
b)the Tribunal’s factual findings were open to it on the evidence before it; and
c)if any error of law had been committed by the Tribunal, which is disputed by the respondent, then such error would not have affected the outcome of the Tribunal’s decision and the matter should not be remitted.
The law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351.
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Minister for Immigration & Multicultural Affairs v Yusef (2001) 206 CLR 323).
Conclusions and findings
The respondent contends that the applicants contentions of fact and law dated 17 May 2005 raise no allegations of error of law for consideration. The respondent further contents that they raise only disputes with factual findings of the Court. The respondent argues that the applicant repeats some of his claims and of the evidence before the Tribunal and says the Tribunal should have believed him. The Respondent further submitted that there was no error of law by the Tribunal and that the Tribunal’s decision was open to it on the evidence before it and that it properly addressed each of the applicant’s claims.
At [56] of the Tribunal’s reasons (Court Book p. 111), the Tribunal found:
I do not accept that the applicant was told that he would be “dealt with” or that he would be killed if he did not disclose the whereabouts of his son-in-law, but even if I am wrong about that I do not accept that they were truly threats of imminent harm or which disclosed an intention by the maker(s) of the threats to give effect to them. I therefore find that they do not amount to “serious harm” within the meaning of section 91R(2)(a) of the Migration Act 1958. Similarly, I do not find that the level of aggression shown toward the applicant amounts to serious harm. I so find for the following reasons. First there appears to have been nothing imminent in the harm threatened for, even though “deadlines” were allegedly given for provision of the information, they were not applied. Although the applicant claimed that he changed his address before one such deadline had accrued, he continued to see these people “on the road” and nothing was then said to him about his son-in-law’s whereabouts. On those occasions, I consider that the applicant would have been vulnerable to harm and that, had harm really been intended, it could have effected. I am also of the view that it would have been possible for his potential assailants to follow the applicant or otherwise to ascertain his new address, had they wished to harm him. But the applicant was not visited at the address to which he had moved and was not harmed. Secondly, although the applicant claims that he believed that his life was in danger, he made no attempt to report the matter to police. I do not accept that, had he reported the matter to police, he was more likely to come to harm than had he not reported the matter. Thirdly, save for a period of 3 months when the applicant was in Australia in 2001, some 5 years have elapsed since the applicant’s son-in-law left Sri Lanka, the applicant was approached only once more, by the man known as Zacharia, and then only after a coincidental contact with him. I do not accept that, the applicant was ever in any danger of harm by reason of any circumstance connected with his son-in-law. Nor, in the circumstances, do I find that there is a real chance that he would be harmed by any of those people should he return to Sri Lanka.
In effect the Tribunal found that the applicant had not been told “that he would be dealt with” or that he would be killed if he did not disclose the whereabouts of his son-in-law. It also said that it did not accept the applicant was ever in any danger of harm by reason of any circumstance connected with his son-in-law. Those findings were open to the decision maker of factual matters. Those findings cannot be overturned on review.
The Tribunal then went on to address the issue of whether the applicant suffered “serious harm” only in the context that it was wrong in its initial findings. The Tribunal set out the reasons why the alleged threats were not ‘threats of imminent harm’ or which disclosed an intention by the makers of the threats to give effect to them and were not serious harm. The Tribunal clearly set out the reasons as to why it reached that conclusion (CB p. 111-112).
The respondent contends that this approach discloses no error of law and in support of that recites Marshall J in Minister for Immigration & Multicultural & Indigenous Affairs v VBAO of 2002 [2004] FCA 1495 (19 November 2004). His Honour at [40] found that it was not Parliament’s intention that threats in the form of declarations of intent could “prima facie on their own constitute serious harm”. His Honour also held at [42] that whether something may constitute serious harm under s.91R(2)(a) involves an “assessment of whether the conduct or action relied upon... endangers or puts in jeopardy the applicant’s life or liberty and, whether the fear which attends this conduct or action and the absence of its reprisal, is well founded.” Crennan J in VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212 at 435 ([28]-[29]) supports that view as follows:
Given the construction of s 91R(2)(a) as a reference to “threat” in the sense of “danger” or “risk”, it follows that when a Tribunal finds such threats have been made, that does not foreclose further enquiry to determine whether such threats amount to “serious harm” within the meaning of the subsection. Whether such threats are sufficiently serious to amount to persecution within the meaning of Art 1A(2) of the Convention and serious harm within the meaning of s 91R is a question of fact and degree for the Tribunal: see Mandavi v Minister for Immigration and Multicultural Affairs [2002] FCA 70 at [13] and [25] (Carr J); Ahwazi v Minister for Immigration and Multicultural Affairs [2001] FCA 1818 at [45] (Carr J); Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 268, 271 (Hill J), which was of assistance to Conti J in the context of s 91R of the Act in NACV v Minister for Immigration and Multicultural Affairs [2002] FCA 411 at [3].
The Tribunal found that either the frequency of the calls containing threats, in the sense of expressing an intention to harm, had been exaggerated or that the callers had no serious intent to harm the appellant. As a consequence, the Tribunal made a finding of fact, that the threats did not involve “serious harm”. The Tribunal is the final arbiter of such an issue and no error arises as alleged.
I am satisfied that the Tribunal’s approach in this mayter was to the same effect and did not involve any error of law.
The second claim made by the applicant was not referred to in his written contentions but was raised very briefly in oral submission to the effect that the Tribunal relied upon country information which was not put to him. There was no elaboration of the claim. The country information in this case was of a generic nature and did not apply to the applicant. I accept the submission of the respondent that in those circumstances it does not have to be put to the applicant. In VJAF v Minister for Immigration & Multicultural & Indigenous Affairs 2005 FCAFC 178 (38 August 2005) the Full Court of the Federal Court held:
The appellant first submits that the Tribunal’s failure to put to him, and to invite his comments upon, country information that it took into account after the hearing, constitutes a breach of its statutory obligation pursuant to s 424A(1) of the Act. This raises the question whether the Tribunal was exempted from that obligation because the country information falls within the exception provided in s 424A(3) of the Act.
Section 424A(1) obliges the Tribunal to give to the applicant for review particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision under review. Both parties accept that this obligation is prima facie engaged in this proceeding. The scope of the exception provided in s 424(3)a is, however, at issue: “This section does not apply to 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.
In all the circumstances I am satisfied that there has been no jurisdictional error disclosed and that the application should be dismissed with costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N. Morales
Date: 15 November 2005
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