MZXEC v Minister for Immigration
[2006] FMCA 692
•16 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXEC v MINISTER FOR IMMIGRATION | [2006] FMCA 692 |
| MIGRATION – Protection visa application – Refugee Review Tribunal – no jurisdictional error shown. |
| Migration Act 1958 (Cth), s.424A |
| WAJR v Minister for Immigration Multicultural & Indigenous Affairs (2004) 204 ALR 624 at [49] s.424A(3)(a) |
| Applicant: | MZXEC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File number: | MLG 1423 of 2005 |
| Judgment of: | Phipps FM |
| Hearing date: | 4 April 2006 |
| Date of last submission: | 4 April 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 16 May 2006 |
REPRESENTATION
| Applicant appearing in person: |
| Counsel for the Respondent: | Ms Symons |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs fixed at $5000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1423 of 2005
| MZXEC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of Sri Lanka and husband-and-wife. Their applications for protection visas have been rejected and the rejection affirmed by the Refugee Review Tribunal.
They arrived in Australia on 8 July 2004 and lodged applications for protection visas. The applicant wife claims she left Sri Lanka for fear of persecution. She claims to fear persecution because of her father's involvement in politics.
The tribunal’s decision
The wife's father has made his own application for a protection visa. The Tribunal received a lengthy submission from the applicant wife and a copy of her father's submission. The Tribunal said that the applicant wife claimed her claims were purely based upon the political involvement and association of her father and the consequent sequence of events relating to this. She gave this as the reason for attaching the submission of her father. Both applicants and the wife's father gave evidence to the Tribunal.
The Tribunal accepted that the wife's father had been politically active for many years in Sri Lanka as he described. He was a member of the Sri Lanka Freedom party since 1987 and was a close associate of both General Ratwatte and the former Prime Minister Mrs Srimarvo Bandaranayke. He worked directly with the former Prime Minister.
The Tribunal accepted that after the Prime Minister lost the election in 1989 the father desisted from further political activities and focussed on business until he met General Ratwatte in 1994. He worked with General Ratwatte and his sons in the General's campaign in 1994. The wife's father claimed that General Ratwatte’s sons were notorious for violence, thuggery and association with the underworld. The Tribunal made no finding about this claim.
The Sri Lanka Freedom Party/People's Alliance came into power in 1994 and General Ratwatte became a minister. The Tribunal accepted that the applicant wife's father received a number of privileges from the General, such as being able to carry on business in Jaffna at a time when such activities were very difficult.
In 1999 General Ratwatte was the Minister for Power. The country faced a severe power shortage and the applicant formed a consortium to provide thermal power. The deal was fixed covering the Minister, one of his sons and other ministry officials. However, the wife’s father said that General Ratwatte let him down. The General had decided to give the deal to another party of which the General was a silent partner.
After this disappointment the wife's father met Mr John Amaratunga who was a United National Party Member of Parliament and whom he knew personally. The father joined the party and associated himself with Mr Amaratunga. Mr Amaratunga won the election and was appointed Minister for Interior and Christian Affairs. The wife's father was appointed as coordinating officer for the Ministry. The wife's father said he was told that the General and his sons were very disappointed and angry at his change of political allegiance.
General Ratwatte and his sons were prosecuted for a massacre which occurred in the 2000/2001 general election. The wife's father claimed that since he was a close associate of the Interior Affairs Minister, he was suspected by General Ratwatte of giving information about previous associations and dealings. General Ratwatte and his sons obtained bail and were able to move about freely.
The wife claimed her father received many threats after leaving the SLFP.
The applicant wife said that her father told her the reason for coming to Australia was death threats against the family. She said that in May 2004 three people came to the house and told her mother that her father should stop working for John Amaratunga.
The Tribunal accepted the wife's father's description of his political activities, but it did not accept that he received threats after leaving the SLFP. The Tribunal noted that the wife's father claimed these problems started in 2004, 3 years after he left the SLFP and joined the UNP.
The Tribunal said that even if it accepted that the wife's father was threatened as claimed, it did not accept that either applicant experienced any problems. They both told the Tribunal they did not have any problems. The wife said in the hearing she was not aware of what problems her father was experiencing. Later in the hearing she said that she knew to a small extent when the maid told her about the three men who came to their home in May 2004.
The Tribunal said that given the wife had no knowledge of these issues prior to her arrival in Australia, it did not accept that she lived in fear while she was in Sri Lanka and it did not accept she was threatened as she had claimed in her protection visa application. The Tribunal said it is satisfied the applicants did not experience any harm at all because of their membership of the applicant wife's family or an imputed political opinion prior to their departure from the country.
The Tribunal did not accept that the applicant wife and her siblings were stopped from going places for some time, as the applicant claimed.
The Tribunal said that given that the wife and husband lived in Sri Lanka without being fully conversant with what the wife's father was allegedly experiencing, and as they suffered no problems during this period, the Tribunal did not accept that they would face a real chance of persecution for reasons of their membership of the applicant's wife's family, now or in the reasonably foreseeable future. The Tribunal said it did not accept that if they were to return to Sri Lanka and the wife's father resumed his political activities, they would face a real chance of persecution.
The applicants’ arguments
The applicants filed an amended application and contentions of facts and law. The applicants represented themselves. They asked that the wife's father make submissions on their behalf, which he did.
The amended application alleges that the Tribunal acted without or in excess of jurisdiction. The particulars allege a number of things. They say that the Tribunal failed to consider the applicants’ express claim that she was at risk of persecution from the People's Alliance/Sri Lanka Freedom Party due to her father's active involvement with the UNP and persecution he underwent because of his involvement. They then allege that the Tribunal ignored or failed to take into consideration relevant material. Particulars under this heading are
i)Submission made by applicant;
ii)That the applicant was persecuted due to the fact that she was the daughter of a past active member of the People's Alliance/Sri Lanka Freedom Party and after leaving the party of the UNP party thereafter;
iii)The Tribunal did not consider the fact that the applicant was fearful of returning back to the country of origin due to the incidents stated to have taken place over some considerable time;
iv)The applicants escape to Australia from her home in Sri Lanka and associated harassment for a convention reason;
v)The fear factor associated with Conventional reasons, namely, threats made by telephone and by unknown person/s, knowledge of threats made her father by underworld thugs;
vi)The Tribunal failed to take into account the consideration that the Police did not actually protect the applicant from torture that she could have undergone, even if the threats received were reported to the police.
The amended application then alleges that the Tribunal failed to accord procedural fairness. The particulars are the applicant was not given an opportunity to respond to the finding or provide further information regarding subjective fear, that the Tribunal failed to take into account the consideration that the police did not provide protection; and that the Tribunal failed to take into account the consideration that the police actively participated in persecution for a convention reason.
The amended application then alleges jurisdictional error by ignoring relevant material. The particulars refer to evidence that the police did not provide protection to those who associate themselves with the UNP.
The contentions allege that the Tribunal did not provide the applicant with notice of its intention to take into consideration that the persecution was not reported to the police, so that the Tribunal did not provide the applicant an opportunity of making further submission. The contentions allege that the Tribunal did not take into consideration that at the time of the incidence the wife was an unmarried female.
The contentions allege that the Tribunal failed to take into consideration the police did not actually protect people associated with the SLFP but participated in the persecution, and repeated the assertion that the Tribunal ignored evidence that the police did not offer protection to those who associate themselves with the UNP.
The applicant wife's father made submissions about why incidents had not been reported to the police. He said he preferred other means of protection available to him when he worked in the Interior Ministry.
Consideration
None of the grounds are made out. The applicants claim to fear persecution is based solely on their family membership with the wife's father. The Tribunal did not accept that he received any threats after leaving the SLFP. The Tribunal noted that the wife’s father claimed the problems started in 2004, 3 years after he left the SLFP and joined the UNP. The Tribunal did not accept that the wife’s father would have received threats in relation to General Ratwatte in 2004 given that the General and his sons were arrested in 2001 and the father had been associated with the Minister of Interior, Mr John Amaratunga since that time.
The Tribunal then said that even if it accepted that the wife's father was threatened as claimed, the Tribunal did not accept that either applicant experienced any problems. Each told the Tribunal they did not have any problems.
A number of the grounds of review in the amended application and in the contentions allege that the Tribunal did not consider the applicants’ claims. This is not correct. The Tribunal accepted the father's evidence about his extensive political involvement. What it did not accept was that his most recent political involvement resulted in threats being made to him. The applicants claim to fear persecution depends on there being threats to the wife's father, and so threats to members of his family.
The contentions allege that the Tribunal did not provide the applicant with notice of its intention to take into account that persecution was not reported to the police. The Tribunal makes no reference to this. The ground is misconceived. Other matters referred to, such as various other matters in the amended application are a repetition of findings which it is claimed that the Tribunal should have made. None of them constitute a ground for alleging the Tribunal has not given proper consideration.
The amended application alleges a lack of procedural fairness through failing to give the applicants notice about findings it was intending to make. Section 424A of the Migration Act 1958 Cth) requires the Tribunal provide particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. This does not apply to the formation of a view about the evidence by the Tribunal (WAJR v Minister for Immigration Multicultural & Indigenous Affairs (2004) 204 ALR 624 at [49]. The exception in s.424A(3)(a) excludes general country information from the operation of the section. One complaint is a claim that the applicant was not given an opportunity to respond to the finding regarding subjective fear. The other complaint is more general. All of the complaints are covered by the answer that the finding or material relied upon is either a formation of a view about the evidence by the Tribunal or it is general country information that is involved.
No ground of jurisdictional area has been shown. In addition, the Tribunal found that if the applicant wife and applicant husband were returned to Sri Lanka, they would not be denied protection for reasons of the membership of the applicant wife's family. The Tribunal found, based on country information, that although the reliability and efficacy of authorities responding to or investing complaints is mixed, there is a reasonable level of protection available to citizens of Sri Lanka.
Therefore, the application is dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date: 16 May 2006
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