MZWYN v Minister for Immigration
[2007] FMCA 1286
•6 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWYN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1286 |
| MIGRATION – Refugee Review Tribunal – no matter of principle. |
| Migration Act 1958, s.91R |
| Woods v Migration Agents Registration Authority [2004] FCA 1622 Ahwazi v Minister for Immigration and Multicultural Affairs [2001] FCA 1818 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | MZWYN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1519 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 23 April 2007 |
| Date of last submission: | 23 April 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 6 August 2007 |
REPRESENTATION
| The Applicant appearing in person |
| Counsel for the Respondent: | Mr Gilbert |
| Solicitors for the Respondent: | DLA Philips Fox |
ORDERS
That the application be dismissed.
The applicant pay the first respondent’s costs fixed at $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1519 of 2006
| MZWYN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a member of a family unit consisting of the applicant, his wife and two daughters who are both minors. They are citizens of Sri Lanka. They arrived in Australia on 11 April 2004 and sought a protection visa on 4 May 2004. A delegate of the Minister refused to grant a protection visa on 12 August of 2004, following which the applicant had sought a review of the delegate’s decision on 31 August 2004.
The matter was heard by the Refugee Review Tribunal on 28 February 2005. The Tribunal refused the application and the matter proceeded on traditional review in the Federal Magistrates Court. The matter was remitted back to the Tribunal to be determined according to law. The application was heard and determined by a differently constituted Tribunal on 25 October 2006. The Tribunal decision runs to 43 pages, canvassing the issues and material extensively.
In short summary the applicant claims, and flowed from difficulties he said arose as a result of his support for the United National Party of Sri Lanka (The UNP).
A number of the aspects of the claim were accepted by the Tribunal, which are usefully summarised in the first respondent’s contentions of fact and law as follows:
7. The Tribunal, in detailed reasoning spanning some thirteen pages, accepted a number of the applicant’s claims. These were as follows:
(a)The applicant became a member of the UNP in 1994 and has since actively supported the party during elections. In 1994 he was harassed by People’s alliance (PA) members and forced to print materials for the PA campaign [CB 360, 378].
(b)In 1994, the applicant also supported his younger brother Upail’s unsuccessful campaign to be elected as a PA candidate. Subsequently, Upali was appointed to the Ceylon Transport Board, where he refused to employ workers solely on the basis of their political allegiance. He became disillusioned with the PA and joined the UNP at the applicant’s suggestion [CB 359, 378]
(c)In 1995, a van full of PA supporters overtook the applicant’s vehicle on the road and screamed at him to pull over but soon drove off [CB 360, 379]. In 1996, the occupants of a van chased and threatened the applicant, but the applicant sought and received assistance at a local army base. He subsequently reported the incident to police [CB 360, 379-380].
(d)In 1998, someone the applicant believed to be an associate of Chief Minister Dissanayake (a prominent member of the PA), threatened the applicant at his hotel. These were merely idle threats that had not been acted upon [CB 359, 380]
(e)During the 2000 election campaign, the applicant received threatening phone calls. After the election some men came to the applicant’s home asking for the applicant. The applicant’s wife screamed at the men, which so startled his daughter that she fell of her chair and broke her arm. The Tribunal found that this did not constitute serious harm. While this incident may have motivated the applicant’s move from Anuradhapura to Kandy, any fear it engendered was not well founded [CB 361, 380]
(f)In April 2003, the applicant sold his hotel and printing business. The Tribunal found that the sale may have been influenced by demands for food and printing by both parties during election time, but the sale was not ‘politically related’ in the sense that it was not motivated by threats the applicant received over the 2001-2004 period. The Tribunal preferred the applicant’s statements that he had experienced no problems during this time to any claims he or his family or the witness made about specific incidents that had allegedly occurred during this time [CB 361, 363-4, 383].
(g)In July 2003, the applicant’s older brother and his niece were killed in a car crash [CB 381]. In August 2003 the applicant started to operate a new business. He put a manager in charge upon leaving Sri Lanka in 2004 [CB 361, 363, 364, 383]. In 2004, the applicant assisted the UNP in its election campaign [CB 381]. In 2006, the Sri Lankan government compulsorily acquired the lease on the applicant’s property because he had breached conditions on which he held the lease [CB 365, 383, 384]
However, the Tribunal rejected a large number of the aspects of the applicant’s claim. It rejected his claim that Chief Minister Dissanayake became an enemy of the applicant (because of the applicant’s claim that his brother left the PA to join the UNP at his suggestion) on the basis that the Tribunal found this to be implausible. It also rejected his claim that PA supporters had started a fire at his business. The Tribunal rejected the applicant’s claim that he and his family had been threatened at home by men who had fired guns. The Tribunal member also rejected claims that his wife was harassed by PA supporters. The Tribunal rejected the claims of the applicant that difficulties with his business of running a hotel and a printing business were caused by persons politically motivated and also rejected the applicant’s claim that he would suffer adverse consequences as a result of the dispute that ensued between him and his previous migration adviser in Australia.
The applicant’s grounds of his application were in the following terms:
1. I (applicant – husband) said one of the main reasons for my fear to return to Sri Lanka was the fear of the Chief Minister of the Province Mr. Premlal Dissanayake who was my main enemy. Mr P. Dissanayake was from the PA (Peoples Alliance) Party and I belonged to the opposition UNP (United National Party). The Tribunal said “However the Tribunal does not accept that the mere act of suggesting that his brother leave the People’s Alliance in which, in the absence of any other information provided to the contrary, the Tribunal assume his brother was then just a branch member, would have invoked the anger of someone as senior as the chief minister of the province to such an extent that chief minister Premlal Dissanayake thereafter considered the applicant to be his enemy.” The mistakes of the Tribunal are:
(a)It is not simple “suggesting” but a decision involving political overtures. Therefore there is no consideration of my claim.
(b)The Tribunal has quoted from the Centre for Monitoring Election violence but yet not considered this information in deciding my case. This information is very relevant to consider my case.
2. I was very much involved in politics but yet the Tribunal said that my involvement was low level. It has not explained to me the difference between low level and high level. This is very important to my case particularly when my involvement was to such a great extent that it could only be described as total involvement and not low level involvement.
3. The Tribunal has given me two letters the 1st dealing with the Land Commissioner’s Office, my statutory declaration of 29/06/04 and that I have fabricated the incidents dated 20th and 21st march and then the issue regarding the sale of business. The Tribunal’s 2nd letter dealt with the copy of the Information Book for the Anuradhapura Police station and the involvement of the niece in our visitor visa application. If is my submission that the giving of the notice to facilitate a finding of my credibility is:
(a) Misread the scope of information.
(b) To treat me with procedural unfairness and
(c) By pass my claim by not considering them.
4. The Tribunal accepted that I was a member of the opposition united national party (UNP) and financially supported the UNP. It also accepted that ti received threats, harassment and property damages but decided these acts are neither individually nor cumulatively amount to serious harm. The Tribunal has no basis to make such a finding and the finding was not supported by evidence and therefore the Tribunal erred jurisdictionally. The Tribunal did not give reasons as to why such treatments do not constitute harm within the meaning of s91 R of the Act.
5. The Tribunal accepted that my brother and my niece were killed while returning from a UNP meeting and ruled out any political motives for the murder despite evidence to the contrary.
6. The Tribunal accepted that my business was acquired by the government on a technicality without realizing and exploring the nexus that such act was purely motivated by one of the convention reason of political victimization.
7. The Tribunal does not accept the Surplace claim that my previous adviser was played a part of dob-in me to the Sri Lankan authorities which contributed in the cancellation of my business lease and my mother receiving threatening calls form my political opponents but while accepting that my previous adviser exhibited vendetta against me and now deregistered and considered not to be fit and proper person to give immigration assistance, failed to explore my claim of persecution and/or Tribunal’s finding on this issue was not supported by evidence.
8. The Tribunal’s finding that the miscarriage of my wife was not convention related is not supported by evidence.
9. The Tribunal has not considered the integer claims of me and my wife thus erred jurisdictionally.
This was supported by the applicant’s contentions of fact and law as follows:
4. The Second Refugee Review Tribunal says that the applicant-husband has been a member of the local UNP branch (UNP is the main opposition political party in Sri Lanka) but finds his profile was of a low level (CB p387 3rd para). The Tribunal does not offer any reasons for concluding that the applicant-husband’s profile was low. It does not provide the information on which it has based its decision. It is a wrong finding. The Tribunal has mentioned about the Centre for Monitoring Violence (CMEV)-{CB p377}
It is convenient to group the applicants claims as they developed at the hearing as follows:
a)Claims that the Tribunal failed to deal with all of the aspects of his claim or properly consider the evidence;
b)Claims that the Tribunal erred in its findings with respect to the meaning of persecution;
c)Whether the Tribunal failed to comply with s.424A;
d)Whether the tribunal dealt with the sur plus claim;
e)The relevance of the applicant’s wife’s miscarriage; and
f)Other claims in the application.
Failure to deal with the claim
In response to the general claims of the applicant the Minister points to the length of the decision and the detail to which the decision maker has gone to when considering the applicant’s claims.
Counsel for the Minister relied upon the statement by the Full Court of the Federal Court in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA FC 167 where the Court pointed out that the making of findings of credibility was uniquely within the jurisdiction of the tribunal and not within the jurisdiction of the Court. It is well established principle that in judicial review proceedings the Court does not and cannot engage in a merits review.
Counsel for the minister also relies upon the comments of Crennan J (as she then was) in Woods v Migration Agents Registration Authority [2004] FCA 1622 where her Honour said:
[55] The reasons of an administrative decision-maker should not be scrutinized in an over zealous fashion in order to glean some inadequacy in the way the reasons are expressed: Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996)185 CLR 259 at 272. Whether the Tribunal failed to give proper consideration to the evidence before it is a question of fact not one of law: Birdseye v Australian Securities & Investment Commission (2003) 76 ALD 321; Australian Securities & Investment Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at [152]. Where a tribunal makes a wrong finding of fact within the jurisdiction, there is no error of law: ABT v Bond at 355-356; see also Federal Commissioner of Taxation v Raptis (1989) 20 ATR 1262 at 1263 per Gummow J. It should only be in exceptional cases where there is a clear case that there was no evidence to support a particular conclusion that the court should undertake the exercise of evaluating the evidence in circumstances where the Tribunal is the ultimate determiner of facts: Parks Holdings at [62]. This is not a case where there is no evidence to support a conclusion of fact nor was it a case where the conclusions drawn could be said not to have been open to the Tribunal. It is not a jurisdictional error for an administrative decision-maker to fail to refer to a piece of evidence: Ping, L.S. and Anor v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236 per Carr J. (Sheppard and Gummow JJ agreeing).
[56] A Tribunal is not required to set out in its reasons a line-by-line refutation of the evidence led by the applicant which is contrary to its findings or conclusions: see Re MIMA; Ex parte Durairajasingham (2002) 168 ALR 407 at 422-423 per McHugh J. The Tribunal had regard to the evidence and made findings of fact, which were open to it and were not perverse. The Tribunal undertook the task of determining the facts without error in accordance with the principles referred to in the abovementioned authorities.
Counsel for the Minister also submitted:
That the finding with respect to the applicant’s involvement with the UNP having been “low profile” was open to the tribunal on the material before it and that for the applicant to agitate that issue before the Court is, in substance, to seek a merits review.
The Tribunal recounted in their decision:
The Tribunal does accept that the applicant was an active local member of the UNP and that he first joined in 1993 or 1994. The Tribunal also accepts that both the applicant and his father financially supported the UNP. The Tribunal is also prepared to accept that during the 1994 election (not in 1993 as indicated in the applicant’s first statutory declaration, a clarification provided by the applicant at the hearing) some PA members might have come to his restaurant, took some of his furniture, caused some damage and forced him to do some printing for the PA however the Tribunal finds this curious since his brother was a PA aligned candidate in 1994 and the applicant was financially supporting his campaign at the time.
The Tribunal is also prepared to accept that given the applicant’s support for the UNP locally that, although this was of a low level, there might have been minor incidences such as the one the applicant described in 1995 when a van of PA people came screaming past him and telling him to pull over his van by that they then went away. The applicant has also claimed that he received threatening phone calls to his home and business over a period of years because of his involvement in the UNP. The Tribunal accepts that in the context of Sri Lankan politics these threats directed by one group of supporters towards another do occur with some frequency especially during and after elections however in the applicant’s case these verbal threats, which he claims to have received over a long period of time, have not been carried out against him. The Tribunal therefore find that these general threats are not of the nature of type that would constitute the type of serious harm that would amount to persecution of the purposes of the Convention. Further the Tribunal finds that these threats, harassment and minor property damage neither individually nor cumulatively amount to serious harm within the meaning of the Convention.
In reply the applicant said that the Tribunal made a wrong finding of fact and that this should be corrected by the Court. It appears to me that this finding of fact was open to the Tribunal on the material before it.
I accept the submissions made on behalf of the Minister that the applicant is essentially seeking merits review.
Whether ‘persecution’ established
The next issue raised by the applicant relates to his claims of threats and incidents involving serious harm. As the Minister pointed out, the question of whether particular matters amounted to persecution is a question of fact and degree for the Tribunal.
The Minister relied upon the comments of Carr J in Ahwazi vMinister for Immigration and Multicultural Affairs [2001] FCA 1818 where his Honour said:
[45] Whether the particular matters of which the applicant complained amounted to persecution within the meaning of the Convention was a question of fact and degree for the Tribunal. I think that its conclusion was open to it on the facts as found. I do not think it is for this Court to interfere with its assessment in that respect: Ji Dong Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 511 at [42], Prahastano v Minister for Immigration and Multicultural Affairs [1997] FCA 586.
As counsel for the Minister submitted, there is nothing in the decision which suggests that the Tribunal member misdirected herself as to the relevant law or the meaning and operation of s.91R of the Migration Act 1958. It was for the Tribunal member to make findings as to which incidents of threats or harm as she accepted or rejected, and then to form conclusions as to whether those that were accepted amounted to persecution within the meaning of the Convention legislation.
There is nothing to indicate that the Tribunal member misdirected herself by assuming that a single act of harm could not amount to persecution or other such error. For example; I note at page 36 of the Tribunal decision that the member recounted:
Yet by the applicant’s own admission at the hearing he had no political problems between 2001 and the claimed incident on 20 or 21 March 2004.
These concerns about his credibility and the fact that he said he had no political problems in the three years leading up to him applying to come to Australia were put to the applicant in a 424A letter. In his response the applicant categorically denied any assumption that he constructed the account of the accident and said that when he applied for the visa to Australia on 8 March he did so with a caveat that in all probability he would not have left the country let alone applied for a protection visa despite having a visa to Australia had the UNP returned to power at the subsequent election in April but that naturally the incident in March only made his intention of leaving the country and applying for protection stronger. The tribunal does not accept this explanation and notes that the applicant went to considerable trouble to get a visa to Australia, including constructing a false story about a niece living in Australia who they were supposedly intending to visit. The applicant himself said that there was no such person but that she was a person they paid money to put her name down as a niece because she had given them a letter in order for them to get the visa more easily. This issue of the applicant going to considerable trouble to construct a false story about a niece living in Australia and obtaining false documents to support his visa application was put to the applicant in a further 424A letter. The applicant’s response detailed above further supports the tribunal’s finding that the applicant had every intention of travelling to Australia and apply for protection when he applied for a visa on 8 March, before any of the subsequent claimed problems occurred and three years after any other claimed problems.
This is but part of the extensive findings of the Tribunal member who dealt with each of the claims, rejecting many of them before making the ultimate finding with respect to the extent of harm.
Whether the Tribunal failed to comply with s.424A
Whilst there is complaint that the Tribunal member looked at material from the first decision, it is clear that this provided a background to the material before the Tribunal. In any event, the applicant was given notice of letters pursuant to s.424A, even though it appears that material he provided for that previous hearing would fall within the exception of 424A(3)(b).
Even if not put in a notice under s.424A, it does not appear to be material covered by the ambit of the section: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26.
I see no error in the way that the Tribunal has approached this aspect of the case.
Whether the Tribunal dealt with the sur plus claim
The final claim was with respect to his sur plus claim relating to the migration agent formally engaged in Australia. This was specifically dealt with by the Tribunal member as follows:
The Tribunal does not accept that any problems the applicant may have had with his previous adviser gives rise to any “Sur Place” claims or indeed that anything his previous adviser might have said about the applicant while he was visiting Sri Lanka has or will result in any political repercussions for the applicant or his family as the Tribunal does not accept that the claims the applicant made in this regard, namely that his business lease has been cancelled or that his mother had been receiving threats because of political repercussions caused by his adviser telling his political enemies what he had been doing in Australia, have in fact occurred. The Tribunal accepts that the applicant has high levels of anxiety regarding his former adviser and it was for this reason that the Tribunal allowed the applicant to adjourn the hearing and dismiss the services of a highly respected interpreter and resume the hearing when an acceptable interpreter was located. The Tribunal also accepts that when the applicant dismissed the services of his previous adviser that a dispute may have ensued and that the adviser may have telephoned him and said “you won’t be more than a year in Australia”. The Tribunal notes that the adviser was deregistered in February 2006 and is now considered not to be fit and proper person to give immigrations assistance however the Tribunal does not consider that this anxiety has any relevance to the applicant’s claimed political problems in Sri Lanka.
I see no error in the manner in which the Tribunal has dealt with this issue. It is not the proper function of this Court to engage in a merits review of this question.
Relevance of Miscarriage
The final claim was related to the applicant’s wife suffering a miscarriage. This was dealt with by the Tribunal (see page 388 of the Court Book). The Tribunal member acknowledged the sad event, but did not conclude that it had a Convention nexus. This was a decision open to the Tribunal on the material.
Other claims in application
To the extent that the applicant made other claims as to a failure of the Tribunal member to deal with integers of claims made by him, a failure to provide procedural fairness and failures to consider claims, the applicant pointed to none at the hearing or in his written material.
Conclusion
I am not satisfied that the applicant has established a ground for judicial review, and I therefore dismiss the application.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Averil Tan
Date:
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