MZXDI v Minister for Immigration
[2007] FMCA 1106
•12 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXDI & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1106 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error. |
| Migration Act 1958, ss.424, 424A |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 A Goninan and Co Ltd v Commissioner of Patents and Another (1997) 75 FCR 200 Ejueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 151 FCR 289 McDonald v Director-General of Social Security (1984) 1 FCR 354 |
| First Applicant: | MZXDI |
| Second Applicant: | MZXDJ |
| Third Applicant: | MZXDK |
| Fourth Applicant: | MZXDL |
| Fifth Applicant: | MZXDM |
| Sixth Applicant: | MZXDN |
| Seventh Applicant: | MZXDO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1493 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 12 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 12 July 2007 |
REPRESENTATION
| Counsel for the Applicants: | Ms R.M. Germov |
| Solicitors for the Applicants: | Wimal & Associates |
| Counsel for the Respondents: | Ms S.A. Burchell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
The Applicants’ pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1493 of 2006
| MZXDI |
First Applicant
| MZXDJ |
Second Applicant
| MZXDK |
Third Applicant
| MZXDL |
Fourth Applicant
| MZXDM |
Fifth Applicant
| MZXDN |
Sixth Applicant
| MZXDO |
Seventh Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicants seek judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 16 October 2006.
The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants protection (Class XA) visas.
The Applicants include the First Applicant (the husband), his two wives and four children who are citizens of Sri Lanka.
The wives and children are members of a family unit and have not made specific claims under the Convention but rather are included in the decision record. Accordingly, the First Applicant will be referred to in this judgment as "the Applicant".
It is noted that the Applicant and his first wife and son arrived in Australia on 14 December 2004 on a short stay tourist visa. The other wife of the Applicant and three children arrived in Australia on 17 January 2005 also on a tourist short stay visa.
The Applicants applied for protection visas on 25 January 2005.
On 15 January 2005 a delegate of the First Respondent refused to grant protection visas to the Applicants. On 30 June 2005 the Applicants applied to another Tribunal for review of the delegate's decision. The first Tribunal affirmed the delegate's decision not to grant protection visas. An application was then filed for review of the first Tribunal's decision with the Federal Magistrates Court, and that application was dismissed by orders made on 7 March 2006. Orders were made by consent relying on an apparent breach of s.424A of the Migration Act 1958 (the Migration Act) following the decision of the court in SAAP Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 remitting the matter to a differently constituted Tribunal. It is the differently constituted Tribunal which made the decision dated 16 October 2006 that the Applicants now seek to review in this Court.
The Applicant's Claims
In the Applicants’ contentions of fact and law filed 16 March 2007 the Applicants’ claims for a protection visa are summarised as follows:
“(a)The Applicant was a supporter of the UNP and the Sri Lanka Muslim Congress. (SLMC)
(b)He was a wealthy businessman from a well-known family in Colombo who was involved in running a profitable travel agency as well as a jewellery and gem trading business.
(c)As a businessman from a well-known family in Colombo, the Applicant's political and philanthropic activities attracted attention to him locally and from political adversaries.
(d)The Applicant was subjected to extortion, threats to his life and kidnapping by (Mr X), a convicted criminal who has been sentenced to death for the murder of a judge and a politician.
(e)The Applicant claimed that he was targeted by Mr X because Mr X was in league with the Applicant's political opponents who wanted to eliminate the Applicant.”
The Tribunal Decision
Throughout this judgment I have deleted all reference to the name of the person referred to as threatening the Applicant and instead referred to him as “Mr X”.
I am satisfied that an accurate summary of the Tribunal's findings appears in the First Respondent's contentions of fact and law filed 5 April 2007 as follows:
“11.1The Tribunal accepted the applicant’s claims that he was targeted by Mr X and that money had been extorted from him. The issue that the Tribunal needed to resolve was the motivation of Mr X and his associates in targeting the applicant and extorting his money from him [CB 187].
11.2The Tribunal noted that none of the material provided by the applicant indicated that Mr X was anything more than a notorious criminal and drug dealer [CB 187].
11.3There was no indication of political connection, although the Tribunal accepted that there was evidence of control over some police officers who had been corrupted [CB 187-188].
11.4The Tribunal accepted that the applicant had a high profile with the SLMC party and that this identified him as a man of financial means. However, it found that this did not show that there was any political motivation on Mr X’s part. The fact the applicant’s brother was not harassed on taking over the applicant’s travel agency business was mot likely because Mr X had been arrested and imprisoned [CB 188].
11.5The Tribunal found that the motivation for the targeting of the applicant was for the essential and significant reason of personal enrichment on the part of Mr X and his associates through extortion and not for any Convention related reason [CB 188].
11.6The Tribunal found that the customs notice issued in November 2004 relating to a motor vehicle the applicant had purchased in 2000 was not motivated by a desire by the PA to persecute him and harass him because they viewed him as a political opponent. Rather, it was an enquiry made by a competent government authority making a routine enquiry seeking an explanation as to why the motor vehicle should remain duty free [CB 188].
11.7The Tribunal noted that the applicant had not claimed any other harm, despite a long and active involvement in the SLMC. The Tribunal was not satisfied that there was a real chance the applicant would suffer harm in the future if returned to Sri Lanka. It further observed that Mr X was in prison and had been sentenced to death [CB 189].”
For reasons which will become apparent, it is also relevant to note that in its decision the Tribunal, after reciting the claims and evidence, including the evidence provided at a hearing on 17 August 2006 where the Applicant was represented by Counsel, then refers to a post-hearing submission which I am satisfied Counsel appearing before the Tribunal requested to provide to the Tribunal and did so by 21 August 2006. The Tribunal refers to the submission in the following terms:
“Post Hearing Submission
In a post hearing submission dated 21 August 2006, the applicant’s barrister provided further arguments, country information and media reports in support of the applicant’s claims. I have read and considered the submission and documents provided prior to making this decision. It was argued that the applicant was an active participant in political and community life in Sri Lanka and it should not be expected that he withdrew from such political and community life in order to safeguard his safety in Sri Lanka. The barrister claimed that media reports indicated strong links between Mr X and members of the Sri Lanka police force, and that Mr X was a ‘thug for hire’ that had been used by political opponents and if the applicant returned to Sri Lanka these same political opponents would use someone else to persecute him. The barrister referred to media reports linking drug dealers to police and politicians in Sri Lanka in support of the applicant’s claim that Mr X had pursued him for his actual or imputed political opinion.”
(Court Book p.186)
Grounds of Application
The Applicant has identified three grounds relied upon in the application as follows:
“1.The decision was made in breach of an essential pre-condition to the exercise of the power conferred by sections 414 and 415 of the Migration Act 1958 (Cth) (as amended) ("the Act") because the Tribunal failed to determine whether the Applicant had a well founded fear of persecution as required by sections 36(2), 91R(1) and 65(1)(a)(ii) of the Act and sub-clause 866.211 of part 866 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).
2.Further or in the alternative, the Tribunal made errors of law constituting fundamental jurisdictional errors on the face of the Tribunal’s decision and the Applicant refers to the matters raised in paragraph 1 above as demonstrative of the Tribunal's failure to review the Applicant’s claims as required by the Act and the Regulations.
3.Further or in the alternative to the matters raised in paragraphs 1 and 2 above, the decision was not a bona fide exercise of the power in that the decision demonstrates that the Tribunal had a pre-conceived conclusion concerning the Applicant’s claims that was not amenable to change regardless of the evidence or arguments put by the Applicant so as to raise a reasonable apprehension of bias on the Tribunal’s part.”
Ground 1 - Failure to take into account relevant considerations
Applicant's Submissions
It was submitted by the Applicant that a Tribunal commits jurisdictional error if it fails to take into account a relevant consideration or makes legal errors that materially affect the decision
(see Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346).
In the present case it was noted the Tribunal accepted significant claims made by the Applicant including claims that he had been targeted by Mr X and was the victim of extortion. It was noted, however, that the Tribunal was not satisfied that the conduct of Mr X was politically motivated and the Tribunal could not find independent evidence of that. In any event, the Tribunal concluded that as Mr X was in gaol he could not harm the Applicant any longer.
The significant complaint by the Applicant was that whilst the Tribunal noted the post-hearing submissions and accepted that the Applicant was not required to corroborate claims, the Tribunal then failed to make findings concerning evidence which accompanied the post-hearing submissions. That failure, it was submitted, constituted a failure to deal with an essential integer of the Applicant's claim. A failure of that kind is sufficient to constitute jurisdictional error according to the Applicant's submission.
Although reference was made to the post-hearing submissions it was claimed that the Tribunal made no findings about them or the annexed articles. It was submitted that the Tribunal did not summarise the contents of the submission nor refer in detail to the attached articles. Merely mentioning submissions, it was submitted, does not "equate to consideration thereof, let alone genuine and realistic consideration." (see A Goninan and Co Ltd v Commissioner of Patents and Another (1997) 75 FCR 200 at 211)
It was further submitted that the Tribunal had required corroboration concerning the Applicant's claim that the conduct of Mr X was politically motivated and by doing so the Tribunal impermissibly sought to impose a burden of proof upon the Applicant. That is sufficient to constitute jurisdictional error according to the Applicant's submissions (see Ejueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 151 FCR 289).
First Respondent's Submissions
The First Respondent submitted that the post-hearing documents, when properly analysed, only refer to the links of Mr X with corrupt police officers and do not contain any allegations that he had been used as a political "thug".
In the present case it was submitted the Tribunal referred to the post‑hearing submissions and the attachments in its reasons. Reference was made to the reasons.
It was submitted that no issues can arise in relation to any obligation to comply with ss.424 or 424A of the Migration Act as the post-hearing submissions were provided at the request of the Applicant's Counsel and was not information the Tribunal obtained as being relevant to its determination. It was argued that so much is clear from a proper reading of the transcript (Exhibit “R1”) where it is clear and I accept that Counsel then appearing for the Applicant expressed a desire to make written submissions and was permitted to do so by the Tribunal (transcript p.23).
It was also submitted and I accept by the First Respondent, that both the Tribunal and Counsel for the Applicant were aware that the Applicant was not required to corroborate the claim.
It was otherwise submitted by the First Respondent that simply because particular events did not receive detailed treatment in the reasons does not mean the Tribunal failed to have regard to it in the context of the present application.
The First Respondent submitted that there has been no requirement of an impermissible burden of proof based on any suggested need to corroborate the claims for the independent evidence of the political connections of Mr X. It was accepted by the First Respondent there is no legal burden of proof in administrative decision-making (see McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358).
When dealing with the complaint in ground 1(c) that there was a failure of the Tribunal to consider the capacity of Mr X to continue to engage in criminal and persecutory activity despite being imprisoned, the First Respondent submitted the Tribunal had already made a significant finding that a Convention nexus did not motivate the activities of Mr X. Accordingly, it was submitted it was not required to consider whether Mr X could continue the activities from prison.
Reasoning
In my view the Tribunal has properly considered the core issue in this case, namely, whether there was a Convention nexus arising out of the conduct of Mr X. Whilst it accepted the Applicant's account of the extortion and other behaviour by Mr X towards the Applicant, it is clear the Tribunal did not accept that this behaviour could properly be regarded as behaviour of someone regarded as a political "thug for hire". In relation to issues raised by the Applicant, I am satisfied that the Tribunal's findings sufficiently incorporated the reference to the capacity of Mr X to continue his activities despite being imprisoned. The Tribunal, in my view, having accepted the Applicant was targeted by Mr X and his associates, and that they extorted money from them as claimed, then correctly identified matters upon which it made appropriate findings free of jurisdictional error as follows:
“The issue that needs to be resolved is the motivation of Mr X and his associates in targeting the applicant and extorting money from him. The applicant’s claims for protection centre around his assertion that Mr X and his associates targeted the applicant for extortion at the behest and instructions of the applicant’s political opponents in the People’s Alliance (PA) which is part of the current governing party in Sri Lanka. The applicant and his representatives have claimed over time that Mr X was a political ‘thug for hire’ and that the applicant’s political opponents used him to threaten the applicant, extort money from him to diminish his ability to contribute financially to his chosen political parties and to discourage him from any active participation in the political process in Sri Lanka.
However as was pointed out to the applicant at the second Tribunal hearing, none of the extensive material provided by the applicant to the Tribunal indicates that Mr X was a political thug or a political ‘thug for hire’ in any way. It is clear that Mr X was a notorious criminal and drug dealer who has been sentenced to death for ordering the killing of a judge. From the information provided by the applicant it appears that Mr X did have control over some members of the police force who he had managed to corrupt but there is no indication whatsoever that he was involved in the political process, had intervened in politics or had ever worked for any political organisation. The applicant and his advisers have suggested that reported links between the underworld and political figures in Sri Lanka would point to Mr X being involved in the political process however as was pointed out to the applicant at the hearing, none of the information he provided makes any link between Mr X and political figures and the fact that the PA government had prosecuted Mr X so strongly and had ensured that he was convicted and sentenced to death would point strongly to the fact that he was not a person who was acting on behalf of the PA.
The applicant has claimed that when confronted by Mr X’s associates and by Mr X himself, reference had been made to the applicant’s political involvement and the donations he had made to his favoured political parties. I accept that the applicant’s high profile role as a supporter and financial donor to the SLMC and the UNP identified him as a man of significant financial means and a ready target for extortion. However in the absence of any other evidence suggesting Mr X was in any way involved in the political process in Sri Lanka, I find that such references made by Mr X and his associates to the applicant’s political involvement were done to show the applicant that these people were aware he had significant financial means and they knew he was able to pay any extortion demands that they made of him, and not because of any political motivation on the part of Mr X and his associates.
The applicant has claimed that the fact that his family, including his brother who continued with the family business after the applicant left Sri Lanka, had not received any demands from Mr X and his associates after the applicant’s departure from the country would indicate that the interest Mr X had in the applicant was political in nature. However, as was pointed out to the applicant at the second Tribunal hearing, Mr X had been arrested and jailed awaiting trial at the time that the applicant left Sri Lanka which would make it difficult, if not impossible for him, to continue making financial demands and extortion attempts on the applicant’s family in Sri Lanka.
Based on all the evidence before me, I am not satisfied that the interest of Mr X and his associates in the applicant was motivated in any way because of the applicant’s involvement in politics, his actual political opinion or his imputed political opinion. Whilst accepting that the applicant has been targeted in the past for harm by Mr X and his associates. I find that the interest of Mr X and his associates in the applicant was motivated for the essential and significant reason of personal enrichment on the part of Mr X and his associates through extortion and not for any Convention related reason.”
(Court Book pp.187-188)
In my view the Tribunal has correctly identified the issue which it needed to resolve, namely, whether the motivation of Mr X went beyond targeting the Applicant and extorting money from him as part of criminal activity and could properly be regarded as political activity.
I note that the material relied upon in the post-hearing submissions does not specifically refer to Mr X having any direct political involvement. There is one article which appears to refer to the possibility of criminal elements participating in the election process in Sri Lanka. That article entitled “Underworld also contesting election” (Court Book p.169) can only be described as an article in vague terms, not referring to Mr X but rather the participation in elections by persons described as "notorious underworld characters".
It is clear in the Tribunal's decision that it not only referred to the post‑hearing submissions but also further in its decision clearly considered in its address reports that Mr X was able to direct "drug dealing activities from prison".
Significantly, the Tribunal also made the following findings:
“The applicant has claimed that if he returns to Sri Lanka now or in the reasonably foreseeable future he fears that he would be harmed by his political opponents in the PA and the government because of his actual and imputed political opinion as a supporter of the SLMC and the UNP political parties. However, despite his long and active involvement in the political process in Sri Lanka, the applicant has not suffered any serious harm in the past in Sri Lanka because of his actual or imputed political opinion or for any other Convention related reason. I therefore now find that if the applicant returned to Sri Lanka now or in the reasonably foreseeable future there is no real chance that he would suffer any serious harm from his political opponents because of his actual or imputed political opinion. I also find that he would not be precluded in any way from continuing his active political and community involvement in Sri Lanka because of any such fear of harm.
Although the applicant did not make any direct claim that he feared harm from Mr X and his associates upon return to Sri Lanka, given that the applicant has faced non-Convention related harm from these people in the past, I have considered whether he would face any harm from these people upon return to Sri Lanka. As was discussed with the applicant at the second Tribunal hearing, Mr X is now in prison and has been sentenced to death as the ringleader being the assassination of a judge. Despite some reports that Mr X was able to direct some of his drug dealing activities from prison, he has not targeted the applicant’s family in any way and is awaiting execution. On the evidence before me I find that if the applicant returned to Sri Lanka now or in the reasonably foreseeable future there is no real chance that he would suffer any serious harm from Mr X and his associates, whether for Convention related reasons or otherwise.
Based on all of the above I find that the applicant does not have a well founded fear of persecution within the meaning of the Convention.” (Court Book p.189)
I do not accept that the Tribunal has impermissibly imposed a burden of proof upon the Applicant. I accept as submitted by the First Respondent that applying the relevant authorities including Randhawa and McDonald that in the present case the Tribunal was simply not satisfied on the basis of the evidence that the persecution suffered at the hands of Mr X was for a Convention reason. I do not accept that a proper reading of the Tribunal’s decision would lead to a conclusion that it has impermissibly imposed a burden of proof on the Applicant.
It is evident from the ground that the Applicant relies upon matters raised in support of Ground 1. Further in this ground although the Tribunal uses the phrase "did not make any direct claim" in the passage set out above, it is clear that relates to a claim upon return rather than the specific and direct claims of being targeted whilst in Sri Lanka. Otherwise the passage reveals the Tribunal has dealt, albeit briefly, with the reports relied upon annexed to the post-hearing submissions. In my view the Tribunal has otherwise dealt with the claims in a manner free of jurisdictional error and accordingly ground one should fail.
Ground 2 – Failure to refer to probative evidence
Applicant's Submissions
In this ground the Applicant relies upon a claimed failure by the Tribunal to refer to probative evidence to support the finding that the persecution by Mr X of the Applicant was not politically motivated, and failure to deal with the independent documentary evidence referred to earlier in this judgment.
First Respondent's Submissions
The First Respondent submitted that the Tribunal did not reject the Applicant's evidence that Mr X was connected with politicians and had been used by them to persecute opponents. It was, however, not satisfied on the evidence that there was a political motivation behind the activities of Mr X.
Reasoning
In my view this ground to some extent relies upon submissions relied upon in support of ground one.
In my view the Tribunal has simply embarked upon a fact-finding process to determine appropriately whether there was in fact any political motivation associated with the activities of Mr X who had targeted the Applicant for extortion. The Tribunal made a finding reasonably open to it set out earlier in this judgment that Mr X and his associates were motivated by "the essential and significant reason of personal enrichment" and "not for any Convention related reason". The Tribunal was entitled to reach that conclusion based upon all the information before it including country information. It is evident from the transcript that the Tribunal was familiar with the activities of Mr X and that there is information concerning that person and his criminal activity.
Accordingly in my view this ground should fail.
Ground 3 – Reasonable apprehension of bias
This ground appears to me to depend upon acceptance by the court of the Applicant's earlier grounds. Having rejected those grounds, I can see no possible basis from which the Court is able to conclude that the adverse findings made by the Tribunal in relation to the claim could constitute a finding by this Court of apprehended bias. Accordingly this ground should fail.
Conclusion
It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 12 July 2007
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