MZXDI v Minister for Immigration - [2006] FMCA 476

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXDI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 476

MIGRATION – Review of RRT decision – invitation to review the merits – fear of persecution not convention related but criminal – dismissed.

Migration Act 1958, s.424A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286

First Applicant:

MZXDI

Second Applicant:

MZXDJ

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG1233 of 2005

Judgment of:

O’Dwyer FM

Hearing date:

7 March 2006

Delivered at:

Melbourne

Delivered on:

7 March 2006

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms Riley

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Application for Review filed on 5 October 2005 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG1233 of 2005

MXZDI

First Applicant

MXZDJ

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

This matter comes before me on an application for a review filed on

5 October 2005 in respect of a decision of the Refugee Review Tribunal (the tribunal) made on 6 September 2005 to affirm a decision of the first respondent’s delegate to refuse a protection visa to the applicant.
The circumstances surrounding the applicant, and his reasons for coming to Australia and seeking asylum, are set out in the decision record of the tribunal and also in the various contentions of fact provided by the applicant and the respondent.
In short, the claims made by the applicant are that he had to flee

Sri Lanka, of which he is a national, because of threats to his life from an individual identified as Potta Naufer.
The circumstance, he said, that gave rise to a Convention related reason was the fact that he had a long history, variously described as 15 to

20 years, of involvement as a member of the Sri Lankan Muslim Congress, which organisation had a close and successful relationship with the UNP when that party was in power in Sri Lanka. Since the change of power to the PA in Sri Lanka, he, because of his political associations, had become a victim of the new power regime in

Sri Lanka. He was approached by Mr Naufer, initially by telephone, demanding 4.5 million rupees, on the basis that he was a member of the Sri Lankan Muslim Congress. Initially the applicant ignored that demand. He was later approached by two women who also made a demand for money. He was later abducted by individuals who brought him before Mr Naufer where further demands were made for money and where an assault of the applicant took place. After that incident the applicant fled Sri Lanka in fear of his life taking with him, eventually, his two wives and four children.
All these claims were put to the tribunal and the tribunal found, in effect, principally, that, although accepting, as the applicant points out, significant aspects of the applicant’s claims, that the cause for the interest by Mr Naufer was not one that related to a Convention reason as alleged by the applicant; namely, for political reasons, as was suggested by the applicant, but one related to the criminal activity of Mr Naufer.
The applicant in filing his application for review had not particularised how it was alleged the tribunal had committed an error as to jurisdiction. By directions made earlier the applicant was directed to file an amended application further particularising how his review was being put. That was not done, but the applicant did file Contentions of Fact and Law. It is fair to say that a reading of the Contentions of Fact and law in themselves appear to rise no higher than an invitation to this court to enter into a merits review.
Today the applicant has extended his contentions to include what could be, broadly based, an allegation that the tribunal failed to comply with s.424A of the Migration Act 1958 in that its decision was in part determined by information that should have been served on him, and an invitation extended to him, to provide a written response to that information.
The information, as I understand it, that is referred to by the applicant concerns documentation actually provided by the applicant consisting of newspaper reports concerning the activities of Mr Naufer and his arrest. In my view, that information is exempted information within the provisions of that section and there was no obligation on the tribunal to have given that written notice and invited the response.
This case I think can clearly be distinguished from that addressed in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and by parallel, with the recent five Full Court appeals in the decision, the first of which is SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2.
The other contentions made by the applicant today addressed effectively, in my view, issues of weight, and criticisms of the tribunal in not giving the weight that the applicant would wish the tribunal to have given such material. In that regard, there is reference made to an affidavit by a justice of the peace, a member of the Colombo Municipal Council, Shahul Hameed Mohamed Kamil, and also a letter by the same gentleman address “to whom it may concern”. In that correspondence, reference is made to the applicant’s involvement in political activity and a reference to threats on his life as told to that gentleman by the applicant. In themselves they are best described as reiterations of matters stated to Mr Kamil by the applicant.

The tribunal is able to give such weight to material as the tribunal thinks proper. In my view, the tribunal did not commit an error of law, let alone a jurisdictional error in how it evaluated this evidence.
Another allegation associated with the tribunal’s finding is also that the tribunal was illogical. After accepting so many aspects of the applicant's claims, of such significance in respect of physical threats and the circumstances in which life in Sri Lanka exists, that it was illogical to ultimately draw the conclusions, which the tribunal did; namely, that the activity of Mr Naufer was criminal and not Convention related, and did not arise out of the political activity of the applicant. As pointed out by Ms Riley, the illogicality of any decision of the tribunal is not sufficient to justify a finding of jurisdictional error (see VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286). In any event, in my view, having read the decision, it was open to the tribunal on the evidence before it to reach the conclusions it did.
The applicant’s also contended that the tribunal should, having been alerted to the issue of the activities of Mr Naufer, and the nature of politics in Sri Lanka, have undertaken its own research in regard to such serious matters as were put before the tribunal before making its decision. There is no obligation on the tribunal to have done that.
I intend to close the matter by saying I understand how the applicant puts his case. I understand the difficulty he faces in coming here today unrepresented. I understand the circumstances also, that were acknowledged by the tribunal and repeated here today, about the safety aspects in Sri Lanka for the applicant. They are genuine concerns, in my view. The question for me though is, as I said, a very technical legal one. I do not have the power to interfere with the fact finding of the tribunal. A fair reading of the tribunal’s decision leads me to the view that it was open to the tribunal to find as it did, principally that the activity that drove the applicant to Australia was not one that was Convention related, but one that was criminally related, and therefore this country is under no obligation to afford protection under the Refugee Convention. The tribunal, in my view, has not made an error going to jurisdiction and as a consequence the decision of the tribunal is afforded protection as a privitative clause.
Having found that, I intend to dismiss the application for review which was filed on 5 October 2005.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Associate:

Date:7 March 2006