MZXFW v Minister for Immigration

[2006] FMCA 825

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXFW & ORS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 825

MIGRATION – Review of decision of Refugee Review Tribunal – s.424A of the Act – credibility findings of the Tribunal determinative – application dismissed.

Migration Act1958 (Cth)

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration & Multicultural & Ethnic Affairs v VBAO of 2002 (2004) FCA 1495
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 546
VBAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 205

Applicants: MZXFW and OTHERS

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1723 of 2005

Judgment of: Hartnett FM

Hearing date: 17 May 2006

Delivered at: Melbourne

Delivered on: 9 June 2006

REPRESENTATION

The Applicants: In person

Counsel for the First Respondent: Ms C.L. Symons

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The name of the first respondent be amended to become Minister for Immigration and Multicultural Affairs.

2. The application is dismissed.

3. The applicants pay the costs of the first respondent as agreed or, failing agreement, as determined by the court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1723 of 2005

MZXFW and OTHERS

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

History

1. The first and second applicants who are husband and wife are Sri Lankan citizens.  They arrived in Australia on a three-month visitor visa on 14 September 2001.  Their child who was born in Australia on 13 December 2001 is the third applicant.  Only the first applicant makes substantive protection visa claims and the protection visa applications of his wife and son depend on the claims of the first applicant.  Thus I shall refer to the first applicant hereafter as the applicant in these proceedings.

2. On 25 October 2001, the applicant lodged with the Department of Immigration and Multicultural and Indigenous Affairs, as it then was (the department), an application for protection visas.  The child subsequently born was added to that application on 22 January 2002.  On 4 February 2002, a delegate of the first respondent refused the application.  The applicant lodged a review application with the Refugee Review Tribunal (the Tribunal) on 26 February 2002, and on 25 July 2003 the Tribunal handed down its decision dated 30 June 2003 in which it affirmed the delegate's decision not to grant the applicant protection visas.

3. On 22 August 2003, the applicant filed with the High Court an application for an order nisi in respect of the Tribunal decision.  The High Court remitted the application to the Federal Court on 23 February 2004, and on 21 June 2004 the Federal Court ordered the transfer of the proceedings to this court.  On 5 May 2005, McInnis FM set aside the Tribunal decision by consent and the matter was remitted to the Tribunal, differently constituted, for consideration.  On 25 November 2005, the Tribunal affirmed the decision of the first respondent refusing the applicant protection visas.  It is this second decision which is the subject of this application.

4. The application before the court was filed by the applicant on 30 December 2005.  In that application the applicant seeks relief, including an injunction and prerogative writs in respect of the decision of the Tribunal made the 25 November 2005 but handed down on 6 December 2005 refusing the applicant protection visas. 

5. The applicant filed an amended application on 10 April 2006 and on 16 May 2006 filed a document headed "Arguments."  That amended application was addressed by the first respondent in contentions of fact and law filed 1 May 2006.  The first respondent had earlier filed a response to the application on 10 January 2006. 

6. The Tribunal first corresponded with the authorised recipient of the applicant, being Mr Mylvaganam Wimalaswaren of Wimal and Associates by correspondence dated 3 June 2005.  Such correspondence advised that the Tribunal was then ready to reconsider the applicant's case. 

7. By letter dated 15 June 2005 and addressed to the authorised recipient, the applicant was invited to attend a hearing before the Tribunal on Wednesday 31 August 2005, with the applicant to give oral evidence and present argument in support of his claims.  He was also advised that he could ask the Tribunal to obtain oral evidence from another person or persons.  The applicant was requested to send any new documents or written arguments that he wished the Tribunal to consider and to answer questions on a form provided, to be returned to the Tribunal together with any new documents or written argument by 1 July 2005. 

8. The applicant responded that he would attend the hearing; that he required an interpreter in the Sinhalese language to be available and that he would be represented at the hearing. 

9. The hearing proceeded on the 31 August 2005 and the applicant gave oral evidence.  On 14 October 2005 the Tribunal informed the applicant that it had information that would - subject to any comments made by the applicant - be the reason or part of the reason for deciding that he was not entitled to a protection visa.  That information was that the Tribunal had identified a number of inconsistencies in the evidence provided by the applicant which might lead it to question the veracity of aspects of his claims.  Such inconsistencies were specifically set out in the correspondence.  The Tribunal set out why the information sought was relevant to the review and invited the applicant to comment on the information by 8 November 2005.  On 7 November 2005, the applicant's authorised recipient wrote to the Tribunal, acknowledging receipt of the letter of 14 October 2005 and requesting an extension of time, to the 15 November 2005, in which to respond.

10. On 11 November 2005 the Tribunal again wrote to the applicant, care of his then recently appointed authorised recipient, Mr Fernandez, repeating the information contained in its correspondence of 14 October save that the applicant was given an extension of time - namely to 25 November 2005 - to comment on the information.  On 25 November 2005 the applicant's authorised recipient wrote to the Tribunal by way of response to the correspondence of 11 November 2005 addressing each of the four issues raised by the Tribunal.

11. On 28 November 2005 the Tribunal wrote to the applicant's authorised recipient advising that the Tribunal had considered all the material relating to the applicant's case and made its decision, which was to be handed down on 6 December 2005.  On 6 December 2005 the Tribunal wrote to the applicant, advising that the Tribunal had determined that he was not entitled to a protection visa and enclosing a copy of the Tribunal's decision and reasons.

The Tribunal Hearing

1. The Tribunal had before it the department's file which included the protection visa application and the delegate's decision record.  The Tribunal also had regard to the material referred to in the delegate's decision and other material available to it from a range of sources including country information. 

2. The Tribunal accepted that the applicant was a citizen of Sri Lanka who had married his wife on 12 December 1996 in Colombo.  The Tribunal stated that the question for it was to determine whether the applicant's fear of persecution was objectively well-founded within the criteria of the 1951 Refugees Convention as amended by the 1967 Refugees Protocol. 

3. Before turning to an assessment of the applicant's claims, the Tribunal noted that it was aware of the importance of adopting a reasonable approach in the finding of credibility.  The Tribunal noted in particular the comments of Foster J in Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, a decision of the Full Federal Court at 482 wherein Foster J said:

   ... care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

4. The applicant claimed that he had been harassed, threatened and had property damaged and that he would persecuted on return to Sri Lanka due to an imputed political profile as a supporter of the United National Party (UNP).  The applicant claimed that he was a strong and ardent supporter of the UNP, attending rallies and meetings, handing out pamphlets, making financial contributions and designing advertising material on behalf of the UNP. 

5. He claimed to have been heavily involved in pre-election campaigning following his return to Sri Lanka from a visit to Australia in February 1991.  He claimed that following the general elections in 1994 and the loss by the UNP and Mr Kumarasinghe, on whose behalf he was heavily involved in pre-election campaigning, that he, the applicant, started to suffer threats and harassment from People's Alliance (PA) supporters and members.  The applicant claimed the police were well aware of these threats as he went and made complaint to them but such complaints were never acted upon.

6. The Tribunal accepted that the applicant was a supporter of the UNP from prior to the elections in August 1994.  It did not accept the applicant was a member of the party based on the evidence he provided in the hearing, confirming that he was only a supporter.  The Tribunal was satisfied that one of the reasons the applicant supported the UNP was because he received a lot of advertising business from the government through Mr Kumarasinghe. 

7. The applicant had claimed that in the 2000 general elections he was asked by Mr Kumarasinghe to help Mr Silva, the UNP candidate for Ratmalana district and other UNP supporters to handle the advertising of the election campaign.  The applicant claimed that all the banners and posters were designed by he and his company and it was common knowledge that he was responsible for this advertising.  He claimed to have received numerous death threats at his business and home by telephone or letter.  He claimed that a lot of his advertising material was defaced with PA slogans and destroyed and that he was personally attacked and threatened a number of times.

8. The Tribunal accepted that during the election the applicant provided advertising material for Mr Kumarasinghe, UNP headquarters and people referred to him by Mr Kumarasinghe.  The Tribunal was satisfied that through the applicant's association with the UNP and Mr Kumarasinghe his company was provided with a lot of business from the party and its members. 

9. The Tribunal noted that the applicant did not provide services exclusively to the UNP, referring to his claims at the hearing that he prepared advertisements for the PA and other parties, although these were not big advertisements.  The Tribunal was therefore satisfied that he did not work exclusively for the UNP but provided services to whomever it was who was willing to pay him.  It accepted that outside of election periods the applicant continued to provide business services to the UNP, preparing advertisements and designing banners. 

10. The applicant claimed that in the October 2000 general elections, although the UNP candidate, Mr Silva won his seat, the PA retained power and PA supporters exacted revenge against people like him who had a high profile and were well known UNP supporters.  He claimed he owned a house which he rented out to a Tamil family.  One day members of the army came to his house and took him to their headquarters on the pretext of questioning him in regard to these Tamil people. 

11. He claimed that at the army offices false allegations were made against him and he was told he would be killed unless he paid them 150,000 rupees.  He was told one of the Tamils had a connection with the LTTE, and given his friendship with them, he would have been aware of this.  The applicant claimed he paid the money to secure his release.  He claimed it was obvious these army officers were acting on the orders of the PA and he claimed to have realised that the PA would stop at nothing in order to intimidate him to pay for his support for the UNP. 

12. The Tribunal accepted that in the 1994 and 2000 election campaigns, the applicant may have experienced some trouble during both those elections.  It accepted he may have received some threats as a result of the advertisements he placed for the UNP and accepted that when campaigning he may have been threatened when he came face to face with supporters of the opposition.  However, it noted that the applicant did not claim anything resulted out of the threats he received at that time. 

13. The Tribunal referred to the decision in Minister for Immigration & Multicultural & Ethnic Affairs v VBAO of 2002 (2004) FCA 1495 in which Marshall J found the principles of statutory construction applied to section 91R(2)(a) of the Migration Act1958 (the Act) which states, "a threat to a person's life or liberty," connoted a "risk" in the sense of danger or hazard and that -

    the intention of Parliament could not have been that threats in the form of declarations of intent could, prima facie, on their own constitute serious harm.  (At page 40)

14. The Tribunal was satisfied that the threats the applicant received during these two elections did not endanger or put into jeopardy the applicant's life or liberty.  The Tribunal found the threats the applicant received during the election period were "patently hollow" given he continued to participate in political activities during both elections without experiencing any physical harm. 

15. The Tribunal accepted that the applicant's cars may have been damaged whilst being used for the campaign and that unknown persons may have been loitering outside his home during this period, however the Tribunal was not satisfied on the evidence that these people were necessarily connected to the PA or to him.  The Tribunal did not accept such incidents constituted persecution within the meaning of s.91R(1) of the Act. 

16. The Tribunal did not accept that following the 1994 election the applicant was subjected to continued threats as he claimed.  It did not accept he received threatening letters and calls from 1994 until he left the country in September 2001.  The Tribunal found -

    the applicant's evidence regarding the frequency of these threats to be confusing and contradictory.

17. The Tribunal had sought to clarify with the applicant how often he had received threatening calls and letters between 1995 and the lead-up to the 2000 election, noting the inconsistency in the evidence as given by the applicant.  The Tribunal also found it -

    far-fetched someone with the applicant's profile, that is, a supporter of the UNP who provided paid advertising services to the party, particularly during elections, and who assisted during the 1994 and 2000 campaign, would be subjected to such a degree of attention over a considerable period of nearly seven years.  It does not accept the applicant's contention that the purpose of this interest in him was to get money from him from time to time.

18. The Tribunal, further, did not accept the applicant received death threats by phone or letter between after the election in 1994 and his departure from the country in September 2001.  The Tribunal examined a letter by the applicant which he claimed was an example of the threatening letters he alleged to have received.  The Tribunal set out its concerns with the letter, noting that it placed no weight on the document for the reasons it set out. 

19. The Tribunal noted the applicant claimed to have received death threats regularly from 1994 onward, yet he was only asked for money for the first time in 1998.  The Tribunal did not accept that if this was the motivation behind the threats made to him, the PA or whoever he claimed was responsible would have waited nearly four years before they made their first demands; nor did it accept that they would continue to threaten the applicant and demand money from him occasionally over the next two years or so without ever receiving a further rupee from him.

20. The Tribunal did not accept the applicant was assaulted after two or three cars intercepted him after dropping his fiancee home and dragged him out of the car.  The Tribunal found the applicant's evidence as to when that incident occurred to be conflicting.  The Tribunal put to the applicant various inconsistencies in the evidence given by him.  The Tribunal was satisfied on reading the applicant's initial submission that there was no reference to an assault on him prior to his marriage in 1996. 

21. The Tribunal also referred to the transcript of the previous hearing the applicant provided, particularly page 7 to 8 when he was asked by the previous Tribunal what harm he had experienced in the past because of his support of the UNP.  The applicant had discussed the death threats he received during the 1994 elections and then stated that in 2001 he was taken for questioning by the Sri Lankan army.  The Tribunal was satisfied that the applicant's answer was in the context of what happened in 2001 and not earlier, prior to December 1996, when he was married.  The Tribunal did not accept the applicant related this incident and not the year.

22. The Tribunal found the applicant to have provided inconsistent evidence regarding when the incident alleged by him - being that his vehicles were stoned and that one night when he was returning home, some cars stopped him and blocked his car, threatened him not to support the UNP and hitting him on the head and some parts of his body - took place.  The Tribunal did not accept that if this incident had occurred, the applicant would have failed to include it in his relatively detailed submission attached to his protection visa application.  The Tribunal therefore did not accept the applicant was assaulted one night when he was returning home and was stopped by two or three cars and pulled out of his vehicle.

23. Further, the Tribunal did not accept the applicant was ever assaulted.  The Tribunal set out in its reasons that it was satisfied the applicant was never physically assaulted by the PA or any other person or group because of his support for the UNP.

24. The Tribunal did not accept the applicant was extorted by a PA supporter in 1998 as claimed.  The Tribunal noted that the applicant did not raise his claim until his hearing with the previous Tribunal, and given its seriousness, the Tribunal did not accept the applicant would have failed to include this in his initial detailed submission, especially when he had included details regarding the money he paid to the army.   

25. The Tribunal also did not accept the applicant would not have thought to have raised this in the interview with the delegate even if he was not directly questioned about it.  Given the importance of the claim, the Tribunal found the lateness with which it was made undermined its validity.  It did not accept the applicant was extorted as he claimed.  The Tribunal also took into consideration the applicant's response, dated 25 November 2005, to its concern regarding the lateness of his claim.

26. The Tribunal found the applicant's contention that he was being threatened for the purpose of extorting money from him from time to time to be implausible given he claimed he was only asked to pay money for the first time in 1998, nearly four years after he had been repeatedly threatened.  The Tribunal also found it far-fetched that the applicant would be subjected to further demands for another two years which he continually refused to meet and nothing else happened.  The Tribunal therefore did not accept the applicant was subjected to extortion demands from the PA or any member or supporter of the PA.

1. The Tribunal's reasons then went on as follows:

   Given the Tribunal does not accept the applicant was threatened as claimed over a seven-year period and was not subjected to extortion demands by the PA or assaulted or harmed by them as he claimed, the Tribunal does not accept the applicant was taken in for questioning by the army and made to pay 150,000 Rs to be released, at the behest of the PA.  The Tribunal does not accept the applicant's profile warranted such attention, whether from the PA or the army, nor does it accept the applicant would have been released by the army before they had received the large amount they had demanded from him for his release.

   The Tribunal also notes the applicant claimed in the hearing the army never came again after the time they took him away in either January or February 2001, however he received five or six calls a week demanding money up until he left the country in September 2001.  The Tribunal does not accept that if the army wanted more money from the applicant, they would pursue him for over six months by calling him regularly and not just pick him up like they allegedly did the first time. 

   It also notes in the applicant's initial submission he claimed prior to his departure and even after he left the country, army officers had come to his home seeking his whereabouts, which is inconsistent with the evidence referred to above, that the army only contacted him by phone.  The Tribunal has considered the applicant's response to this inconsistency in the submission from his adviser, dated 25 November 2005, however the Tribunal finds this does not address the Tribunal's concerns. 

   It notes the applicant essentially confirmed his evidence as provided in his initial statement, that the army called him over the phone and also physically called at his address.  As discussed above, this was inconsistent with the applicant's evidence he provided in the hearing.  For the above reasons, the Tribunal does not accept the applicant was picked up by the army on the premise his Tamil tenants were alleged to have connections with the LTTE and he was required to pay money for his release.  Nor does it accept following his release that he was subjected to further demands from the army or people purporting to be the army for money.

   On the basis that the Tribunal does not accept the army ever detained the applicant and extorted money from him, it does not accept there was a contract given to the underworld to deal with the applicant.  The Tribunal also does not accept this claim is valid given the lateness in which it was made.  Again, the applicant only raised this issue in his hearing with the previous Tribunal.  The Tribunal does not accept the applicant's explanation that he was frightened adequately accounts for his failure to mention this important detail either in his initial submission or in his interview with the delegate. 

   It also does not accept the applicant's submission, in response to the Tribunal's section 424A letter, that he had made reference to this in his initial statement through his discussion of the political situation in Sri Lanka, including the criminalisation of politics and the politically motivated assassinations by armed thugs.  The Tribunal does not accept such general information suggests the applicant may have been the subject of an underworld contract.

   Given the Tribunal does not accept the substance of the applicant's claims, it does not accept he went to the police on seven to eight occasions and reported the threats he was receiving over the six or seven-year period.  The Tribunal has considered the copy of the complaint provided by the applicant, however it places no weight on this document given the applicant claimed the details included were essentially fabricated as he did not suspect the two employees he sacked and who he had reported to the police, were responsible for any action against him. 

   It also does not accept that since his departure from the country, his family have been subjected to calls inquiring about him at five to 10 calls a week, or that his brother was assaulted when coming home and asked about his whereabouts.  The Tribunal finds the assault of his brother inconsistent with the applicant's own claimed experiences in Sri Lanka, in that for seven years he was being threatened with death yet he only alleged he was assaulted the one time but his brother was harmed when these people were seeking to find him.

   The Tribunal also finds it far-fetched that years after the applicant had left the country, these people would still be pursuing him and would seek to harm his brother.  It also found the applicant's evidence as to whether these people were aware he was out of the country to be confusing.  At one stage he stated the callers knew he was outside the country now, however he later stated he did not know whether they were aware he was not living in the country.  The Tribunal does not accept the applicant's family in Sri Lanka have received calls inquiring about him or that his brother has been assaulted and questioned about his whereabouts.

   The Tribunal has also considered the letter provided by Mr Srinath Kumaratunga.  The Tribunal notes in the letter Mr Kumaratunga stated he had been informed by the applicant that he had been questioned on many occasions by the authorities, however when the Tribunal asked the applicant how many times he had been questioned by the authorities he stated it was only once, by the army.  Given the inconsistency in the evidence provided by the applicant and Mr Kumaratunga, the Tribunal places no weight on this document.  The Tribunal also notes that the letter from Mr Kumaratunga appears to be merely hearsay.  Therefore it does not provide any independent information.

2. In conclusion and considering the evidence as a whole, the Tribunal was not satisfied the applicant was a person to whom Australia had protection obligations and therefore did not grant a protection visa. 

Consideration

1. The applicant in his amended application for review alleged the Tribunal failed to exercise its jurisdiction and/or acted in excess of jurisdiction in its consideration of the assault before marriage incident; the extortion incident; and the allegation that the applicant had been the subject of threats including death threats.  In addition, the applicant alleged the Tribunal failed to consider his claims.  Particulars of each of these grounds are as set out in the amended application.

2. I find the Tribunal did discharge its obligation under s.424A of the Act when it wrote to the applicant on both 14 October and 11 November 2005 and clearly identified in those written communications the inconsistencies in the applicant's evidence with which it was concerned.  The Tribunal provided him with an opportunity to respond within a time frame that accommodated the applicant's request for extra time.  The Tribunal is obliged to seek clarification from the applicant of discrepancies in his evidence and claims and did so. 

3. The assessment of the applicant's credibility is a matter for the Tribunal and it is not for this court to engage in merits review.  The Tribunal, having discharged its obligations under the Act, was entitled to assess the applicant's response to the s.424A letter in the context of the other evidence relied on by the applicant and to make findings accordingly.  I find the Tribunal's factual findings to have been open to the Tribunal on the evidence that was placed before it (Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 546).

4. There is no express or implied requirement that the Tribunal use information given pursuant to a request under s.424A only for the benefit of the applicant (VBAC v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 205). The applicant cannot complain that the Tribunal ought not to have regard to material which the applicant sought himself to put before it on the basis that that information, including a transcript of the hearing, was used by the Tribunal to support an adverse credibility finding made by it.

5. In conclusion, the Tribunal comprehensively considered and dealt with each of the integers of the applicant's claim.  It made findings in relation to each integer based largely on issues of credibility.  Those findings were open to the Tribunal on the evidence before it and were made after consideration of matters that were logically probative of the issue of credibility (Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) FCR 456 at 559).

6. The application is dismissed with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:  Tracey Jones

Date:  9 June 2006