MZXCV v Minister for Immigration - [2006] FMCA 836

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXCV & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 836

MIGRATION – Refugee Review Tribunal – protection visa – no jurisdictional error.

Applicants:

MZXCV & ORS

Respondents:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1130 of 2005

Judgment of:

Phipps FM

Hearing date:

23 February 2006

Date of Last Submission:

N/A

Delivered at:

Melbourne

Delivered on:

23 February 2006

REPRESENTATION

Applicant in person

Counsel for the Respondent:

Mr C.J. Horan

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant pay the respondent's costs fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1130 of 2005

MZXCV & ORS

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

Respondents

REASONS FOR JUDGMENT

(Revised from the Transcript)

This is an application to review a decision of the Refugee Review Tribunal. The applicants, husband, wife and two children, have been refused protection visas. Only the husband makes specific claims under the Refugee Convention. His wife and children rely on their membership of his family.
The applicants are citizens of Sri Lanka. They arrived in Australia on

7 June 2004. They applied for protection visas on 28 June 2004. Their application was refused on 14 December 2004. The refusal was affirmed by the tribunal on 12 August 2005.
The husband claims that he was a supporter of the United National Party. It held power in Sri Lanka from 1997 to 1994. Then it won the elections again in December 2002 and lost the election held in April 2004. The husband claims that his family have been strong UNP supporters. In 2002, he started to take a real involvement in politics. He joined a branch of the party. He handed out pamphlets, helped in hanging the flags and other decorations, attended meetings and rallies, and engaged in fundraising activities.
The opposition party is the People's Alliance. The applicant's claims are centred around the April 2004 election. He claims that on the night of the election, which was won by the People's Alliance, that his house was attacked. He claims that his wife and children were threatened to be killed by members of the People's Alliance. He claims that his wife was threatened at gunpoint, and that he was threatened over the telephone almost every day after the election.
He claims that his complaint to the police was refused. He claims that the police would assist the supporters of the political party in power. So while they might have assisted him while the UNP was in power, they would not when the PA was in power. He then claimed that one of his close associates and a co-organiser of the UNP was abducted and severely injured by PA party men. He claims that on 30 April 2004 when he was with his family, he was stopped from entering the gate of his home, and was assaulted with clubs and weapons by four men. He sustained injuries. He claims his wife was threatened by supporters or members of the PA. They said that their children would be kidnapped when they attended school. So they came to Australia on 7 June 2004. At the tribunal hearing, he stated that he moved house in January 2004 and remained there until he left for Australia.
The tribunal accepted that the husband and his family are citizens of Sri Lanka. It accepted that he was a member of the UNP and engaged in the activities of handing out pamphlets, hanging flags and decorations, attending meetings and fundraising. The tribunal noted that he did not claim to have held any position within the UNP.
The tribunal referred to his claim about the night of 2 April 2004 when a few men stoned his house. In the hearing the tribunal referred to his claim that four days after the election, while he was at work, people came to his house. The tribunal said this may be the same incident described in writing already referred to. The tribunal noted that he did not mention weapons in his account to the tribunal.
The tribunal said that in his written submission, he made no mention of the claim he moved house in January 2004. The tribunal said it was not satisfied that the applicant was ever harmed; did not accept that he received phone threats. It was not satisfied that he moved house.
The Tribunal accepted that an organiser of the UNP from the same branch as the husband may have been abducted and severely injured, but the tribunal found that the husband's situation is quite dissimilar to that of a party organiser. The tribunal accepted the applicant's claim that two weeks before the hearing, a journalist was killed for apparently political motives.
As to police protection, the tribunal accepted that the police are often influenced by local politicians. But it did not accept that they would have reacted to his reports of violence in the way the applicant claimed because another party was in power. The tribunal found that the applicants could receive adequate police protection.
In summarising its finding, the tribunal said it accepted that the husband was a member of the UNP, possibly since 2000, who provided some assistance during the last two elections as claimed, but did not accept that he was harmed as a result of providing such assistance in the last election. It found there was not a real chance of persecution or political opinion or any other convention reason.
The husband appears for himself before this hearing. His written contentions and submission to the court repeat the factual claims he made to the tribunal. The application to the court itself claims that the tribunal failed to consider the case, misunderstood the meaning of "persecution" and failed to consider whether the facts as found could have led to a conclusion of well-founded fear of persecution; misunderstood what follows from its finding that the persecution did not have an official quality; failed to consider whether the motive for harm was because of political opinion; and failed to consider the applicant's claim that he suffered persecution because of his religion. In addition, the written contentions of fact and law raise a natural justice point.
A number of the particulars in the application do not appear to relate to the tribunal's findings. For instance, there was no claim by the applicant of persecution because of his religion, and it is not clear what is meant by the particular, "The tribunal misunderstood what follows from its finding that the persecution did not have an official quality." Otherwise the grounds, apart from the natural justice point, are a criticism of the tribunal's reasoning approach.
The tribunal's decision is based on findings of fact. It did not accept that the specific events of harm at the time of the 2004 election claimed by the applicants happened; that is, people coming to the house, threats being made, and physical assault. It accepted that the applicant was a member of the United National Party, and that he was involved in its campaigning in the way he described. It accepted that a local organiser may have been seriously harmed and accepted that acts of violence occur in Sri Lanka, and that elections are sometimes violent affairs. But what it found as part of its fact-finding exercise was that the level of involvement it accepted did not place the husband and his family at risk of harm.
In the submissions today, the applicant has referred to the harm to the party organiser and the death of the journalist. It seems to be a submission that the tribunal did not take these into account. The tribunal did take them into account. It may be that behind the particulars of error alleged is a claim that the tribunal did not ask itself the question what if its finding is wrong, so that there might be risk of harm. That cannot be the case here. The tribunal has made definite findings of fact, and concluded from those findings that there was not risk of harm to the husband or his family if they returned to Sri Lanka. All of those findings were open to the tribunal. It has considered all the relevant aspects of the applicant's claim.
The natural justice point arises from country information referred to by the tribunal, United Kingdom Home Office report, and a European Union report. The applicant's contentions allege not being given notice of those matters, and says that if he was, he could have produced other material.
The tribunal used the reports as showing that there was violence associated with the 2002 and 2004 elections, less at the 2004 elections. The tribunal accepted that that violence occurred and in terms of specific incidents referred to by the applicant, it accepted the abduction and injury to the local organiser, and the death of a journalist. Consequently it was information the nature of which had been dealt with by the applicant in his written submission for a visa, and his evidence to the tribunal.
In terms of the evidence to the tribunal - this can be said despite there not being a transcript or tape before the court - it is clear from the decision that violence at the elections was part of the applicant's claim. In those circumstances there has been no breach of natural justice.
Finally the tribunal found that even if the applicant had been harmed as he claimed, there was adequate police protection. The tribunal specifically found that the change in political power and influence would not shift the allegiance of the police so that they would refuse to entertain complaints from citizens involved in political issues. There has been no jurisdictional error by the tribunal, and the application is dismissed.

I certify that the preceding Nineteen (19) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Sherryn Kwong

Date: 9 June 2006