MZWXM v Minister for Immigration, Multicultural and Indigenous Affairs

[2006] FCA 1248

FEDERAL COURT OF AUSTRALIA

MZWXM v Minister for Immigration, Multicultural & Indigenous Affairs [2006] FCA 1248

MZWXM AND MZWXN v MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
VID 1561 OF 2005

TRACEY J
20 SEPTEMBER 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1561 OF 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY

BETWEEN:

MZWXM
First Applicant

MZWXN
Second Applicant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	20 SEPTEMBER 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants pay the first respondent’s costs.

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 1561 OF 2005

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY

BETWEEN:

MZWXM
First Applicant

MZWXN
Second Applicant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	20 SEPTEMBER 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 15 November 2005 whereby he dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) which was handed down on 10 December 2004.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs to refuse the grant of protection visas to the appellants.

2. The appellants (who are husband and wife) 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 on 14 August 2003.  The application was based on claims made by the husband that he would face persecution if he returned to Sri Lanka and that he feared for his life.  The appellants’ daughter and son in law came to Australia in 1998 to escape harassment in Sri Lanka.  The husband claimed that, after his daughter and son in law left Sri Lanka, where they had been living with the appellants, he was harassed and threatened by the same persons who had harassed his son in law.  They wanted to know where his son in law was.  The husband also claimed that he was associated with persons in the United National Party (‘the UNP’) and that he had actively supported the UNP.  For this reason, he claimed, his political opponents hated and harassed him.  He was later, before the Tribunal, to make additional claims.  He asserted that a bus driver had deliberately run into his vehicle in January 2000 with the intention of harming him.  Court proceedings had been commenced in 2003 as a result of the collision.  The husband was due to give evidence at the hearing but alleged that he had been threatened should he give evidence.  Before he was due to give evidence he left Sri Lanka and came to Australia.  He also relied on claims that the family dog had been poisoned and that windows of his motor car had been smashed.

3. The appellants’ application was rejected by a delegate of the Minister on 20 November 2003. The appellants applied for a review of that decision by the Tribunal on 19 December 2003. As already noted, on 10 December 2004, the Tribunal affirmed the decision of the delegate not to grant the protection visas. The Tribunal was not satisfied that the husband faced a real chance of persecution should he return to Sri Lanka. The critical findings of the Tribunal are conveniently summarised in the learned Magistrates reasons: see [2005] FMCA 1670 at [5]. They were that:

   (a)the husband had not been threatened but, in any event, the alleged threats of harm or level of aggression directed to the husband by those persons who were seeking to establish the whereabouts of his son in law did not constitute ‘serious harm’ within the meaning of s 91R of the Act and that there was not a real chance that he would be harmed by those people should he return to Sri Lanka;

   (b)the husband’s assertion that the motor vehicle collision in which he was involved in January 2000 was a deliberate attempt on his life was rejected:  the Tribunal found that there was no connection between the collision and any attempt by those harassing him to harm him;

   (c)the husband was a ‘sympathiser’ of the UNP, rather than being more directly involved in its activities;

   (d)no threats of harm were directed against the husband by reason of any involvement or imputed involvement by him with the UNP;

   (e)the husband was not threatened with harm in respect of the court proceedings arising from the motor vehicle collision; and

   (f)on the assumption that the incidents relating to the family dog and the smashing of his car windows had occurred, they were acts of vandalism and not related to any political opinion held by the husband or imputed to him.

4. The appellants’ application for judicial review relied on most of the grounds appearing in s 5 of the Administrative Decisions (Judicial Review) Act 1977.  It appears from the learned Magistrate’s reasons that most of these grounds were not pressed at the hearing before him.  What was argued was that:

   (a)the Tribunal had erred in finding that the claimed threats and harm suffered by the husband did not amount to serious harm for the purposes of s 91R of the Act;

   (b)he had suffered serious harm; and

   (c)the Sri Lankan government was unable or unwilling to protect him from persecution.

5. The Magistrate rejected these submissions.  He found no jurisdictional error.  He relied particularly on the finding of the Tribunal that it did:

   ‘not accept that the [husband] 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 ...’

   Even if such threats had been made it did not necessarily follow (so he held) that they constituted ‘serious harm’ within the meaning of s 91R.  He relied on various decisions of this court in which it had been held that ‘serious harm’ raised a question of fact and degree for the Tribunal: see authorities collected in VBAS v Minister for Immigration, Multicultural & Indigenous Affairs (2005) 141 FCR 435 at [28].

6. The appellants appeal from the decision of the Federal Magistrates Court on the following grounds:

   ‘AThere 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 failure to exercise jurisdiction and/or that other findings in the decision’s short comings.

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

7. None of these grounds was supported by any particulars.

8. When the matter was called on before me this morning the first appellant appeared in person.  He indicated that he wished to rely on the written submissions which he had filed and then made a short statement explaining why it was that he thought that the Tribunal had erred.  Counsel for the Minister relied on her written submissions which had earlier been filed and supplied to the appellants. 

9. The appellants’ grounds of appeal in this court amount to an assertion that the Tribunal came to the wrong decision on the evidence before it and that the learned Magistrate was in error in not finding that, for this reason, the Tribunal’s decision was vitiated by jurisdictional error.

10. It was not the function of the Magistrate to reconsider the merits of the appellants’ claim for protection visas; nor is it the function of this Court on appeal from the Magistrate.

11. Counsel for the Minister very properly drew attention to the possibility that the Tribunal’s decision might be impugned on a ground not raised by the appellants either before the Federal Magistrates Court or this Court.  As already noted the Tribunal dealt, in its reasons, with the claim by the husband that the bus driver had deliberately collided with the vehicle in which he was travelling in order to kill or seriously injure him.  One of the bases on which the Tribunal rejected this evidence was that it had not been placed before the Minister’s delegate and had been raised, for the first time, at the hearing before the Tribunal.  This aspect of the Tribunal’s reasoning may have been subject to the objection that the Tribunal should first have alerted the husband to the adverse inference which it might draw from his earlier silence.

12. Had such an argument been advanced by the appellants, it would, in my view, have been bound to fail.  The Tribunal’s evaluation of the evidence does not constitute ‘information’ for the purposes of s 424A of the Migration Act: see VWFP and VWFQ v The Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 231 at [70]. Furthermore, the Tribunal’s rejection of the claim that a deliberate attempt had been made to harm the husband was founded on a range of additional considerations which, standing alone, would have supported the conclusion to which the Tribunal came: see reasons at paras [57] and [58].

13. For these reasons the appeal will be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate:

Dated:        25 September 2006

Counsel for the Applicant:	Litigant in person
Solicitor for the Applicant:
Counsel for the Respondent:	Sharon Burchell
Solicitor for the Respondent:
Date of Hearing:	20 September 2006
Date of Judgment:	20 September 2006