MZXGB v Minister for Immigration
[2006] FMCA 1618
•31 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXGB & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1618 |
| MIGRATION – Protection visa – Refugee Review Tribunal – two Applicants – two decisions of Tribunal – no objection to applications heard together – Tribunal member the same member in each application – Applicants husband and wife – husband applicant assisting wife applicant – no objection taken – Applicants self-represented – Applicant wife relies upon husband Applicant’s grounds for protection visa. |
| Migration Act 1958, ss.422B, 424A, 425, 425A |
| Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 Applicant VEAL of 2002 v Minister For Immigration & Multicultural & Indigenous Affairs (2005) 222 ALR 411 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 MZWYY v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] FCA 506 SZCWJ & Ors v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] FMCA 540 SAAP v Minister for Immigration & Indigenous Affairs (2005) 83 ALD 545 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 |
| Applicants: | MZXGB AND MZXGC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 5 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 19 June 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 31 October 2006 |
REPRESENTATION
| First Applicant: | In person (assisted by a Singhalese interpreter, Mr B Jayasinghe) |
| Counsel for the First Respondent: | Mr R. Knowles |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 5 of 2006
| MZXGB & MZXGC |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application there are two applicants seeking judicial review of two decisions of the Refugee Review Tribunal. The two decisions of the Refugee Review Tribunal were dated 21 November 2005 and 30 November 2005. The Tribunal member in both decisions was the same member.
The first and second applicants are husband and wife. The first Tribunal decision dealt with a decision of a delegate refusing to grant the first applicant a protection visa. The second Tribunal decision dealt with a decision of a delegate refusing to grant to the second applicant a protection visa.
There is no objection to this court hearing the applications for judicial review of both Tribunal decisions at the one hearing. Nor is there any objection to both applicants joining in the application before this court.
The applicants rely upon an amended application filed 21 March 2006. The applicants are both self represented, though appeared with the assistance of an interpreter. The first applicant appeared to make most of the submissions, which I take, however, for present purposes to have been made both on his own behalf and on behalf of his wife, the second applicant.
The applicants, although appearing self represented, have relied upon contentions of fact and law filed 9 June 2006. It is apparent from that document that the applicants have at least received some benefit of legal assistance, and I draw that conclusion simply from the contents and layout of the document.
For present purposes it is noted that the applicants adopt those contentions and otherwise seek to rely upon the amended application. It should be noted that the First Respondent had relied upon contentions of fact and law filed on 9 May 2006. On that occasion the First Respondent understandably had some difficulty in addressing the grounds sought to be relied upon in the amended application.
When the matter came before the court on 30 January 2006, the original application having been filed on 4 January 2006, orders were made in relation to the filing and serving of certain documents, including the amended application.
The hearing of the matter listed on 9 May 2006 was ultimately adjourned and the applicants were then granted leave to file and serve contentions of fact and law by 8 June 2006, and the respondent leave to file and serve a reply, if any, by 15 June 2006. The parties complied with those orders, and as indicated earlier, the applicants have relied upon contentions of fact and law filed 9 June 2006 and the First Respondent, a reply filed on 15 June 2006.
Background
The applicants are citizens of Sri Lanka. The first applicant arrived in Australia on 27 July 2004. The second applicant arrived in Australia on 4 December 2004. On 11 August 2004, the first applicant lodged an application for a protection visa with the department of the First Respondent.
It should be noted that there is no dispute in the matter before the court that it is the claims of the first applicant which essentially provide a basis upon which the second applicant then made her own claim for a protection visa. Indeed in her application filed with the department on 30 December 2004, the second applicant repeated the claims of her husband, the first applicant, as grounds upon which she sought to obtain a protection visa.
Hence it is appropriate to set out in summary form the claims sought to be relied upon by the first applicant which I am satisfied have been accurately summarised in paragraph 1.4 of the First Respondent's contentions of fact and law.
“1.4 In particular, he claimed that:
(a) he was a business person in Sri Lanka [CB 34.2-4];
(b) he was also a supporter of the United National Party (‘UNP’) [CB 34.3-4];
(c) he owned and operated businesses providing supplies to, among other customers, the Sri Lankan army [CB 34.4];
(d) while delivering supplies to the army, a driver employed by the first applicant was attacked by ‘members of a Tamil organization’ [CB 34.5];
(e) when the first applicant ceased to employ this driver, his supply vehicles were not obstructed [CB 34.6];
(f) the first applicant tendered for the business of supplying the Sri Lankan air force [CB 34.8];
(g) associates of a powerful government minister told the first applicant that he should withdraw his tender and, when he did not do so, threatened him [CB 34.8-10];
(h) during a trip to delivery supplies to the army, ‘a Tamil’ attempted to extort money from the first applicant and another driver [CB 35.2];
(i) when the first applicant and his driver did not pay money, they were assaulted by Tamil people [CB 34.5-6];
(j) the first applicant and members of his family were threatened by the government minister, who was also a business competitor, and his associates [CB 35.8 – 36.3]
(k) the minister had links to the Liberation of Tamil Eelam (‘LTTE’) [CB 36.3]; and
(l) fearing for his safety, the first applicant went into hiding and then left Sri Lanka [CB 36.4-9].”
The Tribunal's Decision
Likewise I am satisfied that the decision of the first Tribunal in relation to the first applicant included a number of findings which I am satisfied are accurately set out in paragraph 2.2 of the First Respondent's contentions of fact and law as follows:-
“2.2 The Tribunal relevantly found that:
(a) the first applicant was a business person in Sri Lanka [CB 230.2];
(b) he was also a member of the UNP [CB 230.2];
(c) the first applicant’s first driver was attacked by people of Tamil origin [CB 230.3];
(d) these attacks were not directed in any way at the first applicant or his business [CB 230.4];
(e) rather, these attacks resulted from an independent dispute between the first applicant’s employee and his assailants [CB 230.4];
(f) the first applicant and his second driver were attacked by Tamils on one occasion and the first applicant and his family subsequently experienced related threats made by these assailants or others on their behalf [CB 230.7];
(g) this incident and any subsequent threats were not motivated in any way by any Convention-related reason [CB 230.9];
(h) rather, the incident involved a criminal attempt to extort money from a business person who was seen by the perpetrators as capable of paying extortion demands [CB 230.9-10];
(i) threats and attacks against the first applicant and his family by the prominent minister and business competitor and his supporters were not made for a Convention-related reason [CB 231.8-9];
(j) rather, these threats were motivated by a desire to protect the minister’s own business interests from competition from the first applicant’s businesses [CB 231.9];
(k) furthermore, the threats and their consequences did not constitute serious harm amounting to persecution within the meaning of the Convention [CB 232.2];
(l) the prominent government minister and his associates did not attack the first applicant’s home and, while there, assault his father-in-law and make death threats against the first applicant [CB 232.7];
(m) general threats made against the first applicant during an election campaign did not constitute serious harm amounting to persecution within the meaning of the Convention [CB 233.20];
(n) therefore, prior to his departure from Sri Lanka, the first applicant had not experienced any serious harm for a Convention-related reason [CB 233.10] – 234.1];
(o) on the basis of its previous findings and the evidence before it, the only motivation for the prominent minister and his associates to harm the first applicant upon return to Sri Lanka related to their fear that he might compete against them [CB 234.8-9];
(p) moreover, the Tribunal was not satisfied that there was a real chance that the applicant would suffer ‘serious harm’ at the hands of the minister and his associates if he returned to Sri Lanka in future [CB 235.4]; and
(q) any threats and low-level intimidation from political opponents in the context of robust political campaigning would not amount to serious harm constituting persecution within the meaning of the Convention [CB 235.5-8].”
The decision of the Tribunal in relation to the second applicant relevantly stated the following at Court Book p.255.8-9 that:
“In relation to the applicant’s fears of harm because of her membership of a particular social group being her husband’s family, I have already found that the sole motivation for the persecution feared by the applicant’s husband is in relation to business interests and not for any Convention related reason.
I must therefore disregard any such fear of persecution by the applicant through the operation of Section 91S of the Act.”
For reasons which will become apparent, it is also significant to note that at the first hearing before the Tribunal in relation to the first applicant's claim, the second applicant had attended. However, after she attended the hearing the Tribunal apparently requested that she wait outside and accordingly I find that she was not present during the hearing of the first applicant's application before the Tribunal.
That factor is conceded by the First Respondent and is relevant for reasons which will become apparent further in this judgment when considering the grounds relied upon by the applicants.
It is, however, relevant to note, in addition to the summary of the Tribunal's findings in relation to the first applicant, and the extract from the Tribunal decision in relation to the second applicant, to note the following from the first applicant's decision where the Tribunal states:
The applicant agreed to the request by the Tribunal that the evidence here provided at the hearing could be used in determining his own matter as well as the separate application for protection lodged by his wife, relying upon similar facts, circumstances, to his own. The applicant's adviser also indicated that he had no objection to this course of action.
(Court Book p.229)
It is appropriate to pause at this stage and note that that comment was made in the absence of the second applicant and appears to presume that the Tribunal was entitled to obtain a concession from the first applicant which would bind the second applicant in the hearing before the Tribunal.
It is relevant, however, to note further that the same person represented both the first applicant and the second applicant at the hearings. At the second hearing before the Tribunal it appears that the second applicant attended and it is noted under the heading, "Tribunal hearing" in relation to the second applicant that the Tribunal states the following:
The applicant gave oral evidence to the Tribunal on Wednesday, 9 November 2005 assisted by an interpreter in the Sinhalese language. The applicant's adviser was present at all times during the hearing.
At the hearing the applicant confirmed her personal details and stated that although she was born in Kegalle, her father opened a business in Anuardhapura soon after her birth, and for as long as she can remember the family have lived in Anuardhapura.
The applicant consented to the Tribunal using the evidence that her husband had already provided at a Tribunal hearing in his own application for review when assessing her application. She also consented to the Tribunal using her evidence at the hearing in determining her husband's application. The applicant's adviser indicated that he did not object to this request.
A number of observations should be made in relation to the procedure adopted by the Tribunal. The first is that the hearing of the first applicant's claim occurred on Tuesday, 8 November 2005. At that hearing the first applicant's adviser was present at all times during the hearing. The second hearing of the second applicant's application occurred on Wednesday, 9 November 2005, and at that hearing the same adviser was present at all times during the hearing.
It seems clear that the concession made by the first applicant in relation to the conduct of the second applicant's hearing was a concession made in the absence of the second applicant. It is not clear whether at the second hearing of the second applicant's application the concession she made that her evidence could be used for the hearing determining the husband's application was made in the presence of the husband.
What is clear is that both applicants appeared to be represented by the same person and at least through the adviser representing both on separate occasions, appeared to consent to, and/or not object, to the proposed course of action of the Tribunal where it had indicated it was prepared to take into account in both applications evidence and material provided by each applicant.
It is further relevant to note that in the second application the Tribunal in fact referred to in some detail an extract of its own findings and reasons in relation to the claims of the first applicant. It set out in detail an extract of those findings (Court Book pp.252-253).
Further, in the reasons for the Tribunal's decision in relation to the second applicant's claim, the Tribunal set out in some further detail other findings and reasons in relation to the claims of the first applicant concerning an alleged attack on the family home on or around 15 or 16 June 2004.
In the second application the Tribunal otherwise sought to refer to country information and having done so then made a finding in relation to the second applicant that she did not suffer any serious harm for any convention-related reason prior to her departure from Sri Lanka.
It is perhaps significant to note that in the second application, having referred to and adopted its own reasoning when dealing with the first application, the same Tribunal then states in relation to the second application the following at Court Book at p.255:
The applicant has claimed that if she returned to Sri Lanka now, or in the reasonably foreseeable future, she fears harm from the political and business opponents of her husband, either because of her imputed political opinion or because of her membership of a particular social group, being her husband's family.
Based on my previous findings, and on the evidence before me, I accept that if the applicant and her husband return to Sri Lanka now, or in the reasonably forseeable future, that they would be viewed as a threat to the business interests of P and his associates and may be subject to some threats from these people.
However, I am not satisfied that these people are motivated to threaten the applicant for any political opinion. I therefore find that these people would not be motivated to harm the applicant for her imputed political opinion, and further find that the sole motivation for P and his associates to harm the applicant is their fear that the applicant's husband may compete against them in their own business interests.
The Grounds of the Application
As indicated earlier, the applicants rely upon an amended application filed 21 March 2006, together with contentions of fact and law filed 9 June 2006. I am satisfied that the grounds sought to be relied upon in the claim made by both applicants asserting that the Tribunal decisions are affected by jurisdictional error have been accurately set out in the First Respondent's reply submissions filed 15 June 2006 at paragraph 2.1 as follows:
“2.1 In the Tribunal’s decision for the first applicant, it concluded that the first applicant did not have a well-founded fear of persecution within the meaning of the Refugees Convention (as amended by the Refugees Protocol) (‘Convention’) [CB 236.3].”
It should also be noted that as a matter of fairness, the First Respondent brought to the attention of the court quite properly the possibility that the procedure adopted by the Tribunal when dealing with both applications may potentially have involved a breach of s.424A of the Migration Act 1958 (the Migration Act).
The possible breach arose in circumstances where, as I understand it, the information sought to be relied upon by the second Tribunal in dealing with the second applicant's application, that is information arising from the hearing of the first applicant's application, was information which should have been provided by the second Tribunal to the second applicant. It is appropriate to deal with that issue in due course.
Submissions and Reasoning
Whether the Tribunal afforded the Applicants sufficient time to make their case
The applicants have submitted that the Tribunal did not provide them with sufficient time to obtain further documentation or comment on the anonymous letters that
disparaged the claims of the applicants in respect of their legitimate refugee status, or the report of the United States Department of State on the conduct of the 2004 general elections in Sri Lanka.
The respondent submitted that the Tribunal in this instance had provided both applicants with sufficient notice of the time and place of their respective hearings. The first applicant's hearing took place on 8 November 2005, and the second applicant's hearing on 9 November 2005. It was submitted by the First Respondent that the applicants were therefore told of their hearings approximately six weeks in advance of the dates of those respective hearings.
The Tribunal did not hand down its decision for the first applicant until 1 December 2005 and the decision of the second applicant was not handed down until 8 December 2005. Accordingly it was submitted that the Tribunal's decisions were handed down between three and four weeks after the hearings in each instance. At all times during the respective hearings before the Tribunal, it was submitted that both applicants were assisted by the same representative.
There was no indication on the available material that during or after the Tribunal hearings the applicants or their representatives sought to lodge further written submissions with the Tribunal. It was further submitted by the First Respondent that there is no indication in the Tribunal's decisions that any request was made by the applicants for the Tribunal to postpone its decision pending further material being lodged with the Tribunal by the applicants.
Accordingly it was submitted the applicants have not established an argument that they were denied sufficient time to provide further material with the Tribunal. Between the time of their review applications and the handing down of the Tribunal decisions it was submitted approximately 12 weeks had elapsed. The applicants had both had many months, it was submitted, to obtain material while the applications for protection visas were being considered by the delegate of the First Respondent.
It should be noted in any event that the First Respondent submitted that any claim procedural unfairness was not occasioned by a failure to comply with the requirements of Division 4 of Part 7 of the Migration Act does not constitute a basis for judicial review. Reliance was placed upon s.422B of the Migration Act which provides that the common law natural justice hearing rule did not apply to the review before the Tribunal.
Reliance was placed upon the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 (Lay Lat) at [60]-[70] as follows:
“60. The question of the proper construction of s 51A and the corresponding provisions of ss 357A and 422B has been the subject of a number of judgments of single judges of the Court.
61. The authorities in which the ambit of these provisions has been considered are: VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 (“VXDC”) at [22] – [31] (Heerey J); NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at [50] – [87] (Lindgren J); Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 at [21] – [23] (Hely J); Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 at [23] – [37] (Gray J); WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [47] – [59] (French J); Applicant M17 v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 85 ALD 597 at [83] (Ryan J); SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 at [1] – [18] (Branson J); WAID v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 220 at [57] (French J); SBTC v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 260 at [19] (Finn J); SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [27] – [29] (Edmonds J); Katisat v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1908 at [45] – [49] (Bennett J).
62. Reference has also be made to this question, by way of obiter remarks, in a full court authority; see NAMW v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 140 FCA 572 at [139] (Merkel and Hely JJ).
63. We do not propose to repeat or analyse the division of opinion as to the ambit of the provisions which is revealed in those authorities. The differing views are fully set forth in the passages from the judgments to which we have referred.
64. It is true that the words “in relation to the matters it deals with” might be thought to be ambiguous or, perhaps, as Heerey J said in VXDC, obscure. However, reference to the Explanatory Memorandum and the Second Reading Speech makes it plain that s 51A and the related provisions of the Act, were intended to overcome the effect of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 (“Miah”).
65. Heerey J set out in VXDC at [23] – [25] the relevant passages from the majority judgments in Miah and the salient portions of the Explanatory Memorandum and the Second Reading Speech. The words “exhaustively state” are, as Heerey J pointed out, picked up in the Explanatory Statement from the majority judgments in Miah. We agree with the observation at [30] in VXDC that the drafters of the Explanatory Statement and the Minister could hardly have made the intention of the 2002 amendments any clearer.
66. What was intended was that Subdivision AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
67. Other aspects of the common law of natural justice, such as the bias rule are not excluded; see VXDC at [27].
68. The intention to exclude the common law rules in the present case is especially plain when s 51A(1) is read with s 57(3). The Legislature could hardly have intended to provide the full panoply of common law natural justice to visa applicants who are required to be outside Australia when the visa is granted, while conferring a more limited form of statutory protection upon onshore applicants.
69. Counsel for the respondent submitted that the words “in relation to the matters it deals with” mean that the decision-maker must, in each case, consider whether there is an applicable common law rule of natural justice and then examine the provisions of subdivision AB to see whether it is expressly dealt with.
70. We reject this submission. As was said in VXDC at [31], the decision-maker is likely to be a person without legal qualifications. Parliament could not have intended that “the uncertainties of the common law rules were in some unspecified way and to some unspecified extent, to survive.”
It was submitted that aside from any allegation of a failure by the Tribunal to comply with procedural requirements set down by provisions in the act, the applicants cannot otherwise rely upon any argument that they were denied procedural fairness.
In my view, notwithstanding the impact of s.422B of the Migration Act, I am satisfied that in any event in this instances that there has been no breach of ss.425 and/or 425A of the Migration Act, and/or Regulation 4.35D of the Regulations.
For the reasons advanced for and on behalf of the First Respondent,
I am satisfied that both applicants had sufficient time to present their case. The chronology of events clearly indicates that many weeks passed from the time of the filing of the application for protection visas for both applicants and the delegate's decision, and moreover further time elapsed between the date of the delegate's decision and the hearing dates.In addition I am satisfied that the applicant's representative on both occasions before the Tribunal hearings did not seek any further time within which to make additional submissions in relation to those matters which were clearly agitated before the Tribunal by both applicants. Accordingly this ground should fail.
Failure to comply with s.424A in relation to the two anonymous "dobbing" letters and Country Information
The applicants submitted that, as I understand it, there had been some denial of procedural fairness and/or breach of s.424A in relation to both the "dobbing" letter and the country information. So much appears from the amended application.
The First Respondent submits, in relation to the "dobbing" letter that during the hearing the Tribunal put the substance of the letters to the applicants and apparently provided copies of the letters to the applicants (see Court Book pp.47-48). Accordingly by doing so it afforded natural justice. In any event in relation to this ground the First Respondent further relies upon s.422B of the Act.
Further it was submitted the Tribunal expressly "eschewed" any reliance on the material. It stated that it did not intend to place any weight on the letters or their contents. Accordingly it was clear, according to the First Respondent's submissions, that the Tribunal did not consider the letters or any information in them would be part of the reasons for decision. Therefore s.424A did not apply to the letters or their contents (see Applicant VEAL of 2002 v Minister For Immigration & Multicultural & Indigenous Affairs (2005) 222 ALR 411 at [11]‑[12]).
In relation to the denial of the breach of s.424A arising out of country information, the First Respondent submitted that that section, and in particular sub-s.424A(3)(a), does not apply to information "that is not specifically about the applicant or another person". Accordingly it was submitted that s.424A did not apply to the country information used by the Tribunal in its decisions.
In my view the submissions of the First Respondent in relation to this ground is correct. I am satisfied that by not relying upon what is described as the "dobbing" letters, and further by relying upon country information not specific to the applicants that there cannot be a breach of s.424A established in relation to those matters. Accordingly this ground fails.
Failure to consider the claim that the First Applicant faced a real chance of persecution due to membership of a Social Group, namely Businessmen
As I understand the applicant's submission, the jurisdictional error in relation to this issue only arises in relation to the first applicant and whether or not the Tribunal had failed to consider a relevant claim, namely his membership of a social group. In this case the social group is referred to as "businessmen".
The First Respondent submitted in relation to this claim that a proper review of the material advanced for and on behalf of the applicants, and in particular the first applicant, does not reveal any claim concerning the existence of a particular social group to which the applicants had belonged. It was submitted that at no stage did the applicants expressly claim for a particular social group comprised of business people. Accordingly it could not be concluded that the Tribunal failed to respond to a substantial or clearly articulated argument relying upon established facts (see Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at [24] and [95]).
In this application the First Respondent submitted that it could not be claimed on the material in evidence of the cases presented by the applicants that they had sufficiently raised a claim of a well-founded fear of persecution on the basis of membership of a particular group.
It was submitted that in those circumstances the Tribunal was not obliged to deal with a claim if it did not clearly arise on the materials before it (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [60]-[61]).
It was otherwise submitted by the First Respondent, having referred to the relevant law in relation to a particular social group, that the factual substratum of the applicant's claims was comprehensively considered by the Tribunal and to a large extent many of the claims were accepted by the Tribunal. Ultimately, however, the Tribunal found that the claimed facts did not give rise to any nexus with the Refugees Convention (as amended by the Refugees Protocol).
In particular it was noted that the Tribunal made findings open to it on the material before it by finding that any threats made by the first applicant's business rival were "motivated by a strong desire on the part of the perpetrators to protect their own business interests from competition" (see Court Book p.231.9).
Further the Tribunal had found in relation to the threats which the first applicant had experienced in the past that they did not constitute serious harm amounting to persecution. The First Respondent submitted that was an alternative and independent assessment of the applicant's claims of past harm and was a conclusion open to the Tribunal.
Further in the alternative it was submitted the Tribunal did deal with the issue of membership of a particular social group to the extent that it made findings that the applicants did not have a well-founded fear of persecution by reason of their political reason "or any other Convention reason". The Tribunal expressly found that the "sole motivation" for any harm experienced by the applicants was the business rival's fear that the first applicant might compete against him in the rival business's interest.
In my view the First Respondent's submissions in relation to this ground are correct. It is clear from a proper reading of the Tribunal's decision in relation to both applications, where essentially it had to deal with the first applicant's claims, that it drew adverse conclusions which I regard as reasonably open to it. It was not strictly necessary for the Tribunal to consider that in detail, reliance upon membership of a particular social group, and I am satisfied in the circumstance that that issue was not squarely raised before the Tribunal by the applicants.
Specifically I am not satisfied that the applicants, that is specifically the first applicant, raised membership of a particular social group, namely that of "businessmen". In any event, I further accept that the Tribunal made significant adverse findings in relation to the material presented to it by the applicants concerning the threats which have been made against the first applicant by his business rival.
It was open to the Tribunal to reach a conclusion that those threats were not motivated by Convention reasons but rather motivated by what it describes as a strong desire on the part of the perpetrators "to protect their own business interests from competition".
Further I am satisfied that in this instance the Tribunal's finding in relation to the facts, some of which were favourable to the applicants, did not of itself provide the essential nexus between the Refugees Convention in a manner which would result in the claim by the applicants succeeding. The findings by the Tribunal were findings which in my view were reasonably open to the Tribunal free of jurisdictional error. Accordingly this ground should fail.
Failure to consider State Protection
This ground in my view cannot succeed for the clear reason that having found that the earlier findings were free of jurisdictional error, it was unnecessary in any event for the Tribunal to consider state protection.
It was submitted by the First Respondent, and I accept, that whether the Tribunal did or did not make findings about state protection, it was unnecessary for it to do so having determined that the applicants had not experienced persecution in Sri Lanka in the past for Convention reasons. Accordingly this ground fails.
Failure to consider the Applicants' subjective fear
The applicants submitted that in this instance the Tribunal did not consider the subjective fear of the applicants who had to establish a well-founded fear of persecution, but rather simply considered the claims made in an objective manner.
The First Respondent submitted in relation to this ground that even if one were to accept the Tribunal did not make a finding on the issue of subjective fear, that there was no obligation to do so because it effectively found that any subjective fear would not be objectively well founded (see MZWYY v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] FCA 506 at [4] and [14]‑[15]; SZCWJ & Ors v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] FMCA 540 at [17] and [26]).
It was submitted the Tribunal's decision does not disclose any misconstruction or any misapplication of the relevant test laid down by the Convention.
I agree with the submissions of the First Respondent in relation to this ground for the reasons advanced. The Tribunal in my view in this instance had considered the question of the fear appropriately and had concluded, having considered this subjective fear, that it would not be objectively well founded. So much is evidenced from the extracts from the Tribunal's decision and the summary set out earlier in this judgment. I can see no error in the manner in which the Tribunal approached its task, having regard to the relevant authorities referred to by the First Respondent.
Denial of Procedural Fairness
It will be noted earlier in this judgment that the First Respondent relied upon s.422B of the Act when dealing with the issue of procedural fairness. It is perhaps not surprising that the applicants who are self represented did not specifically address this issue.
I should note in passing that the applicants' submissions in relation to this issue were brief and to some extent quite general. In fairness it should further be noted that emphasis appeared to be placed upon the claimed failure to deal with s.424A, which I have dealt with earlier in this decision, and to that extent reliance was placed by the applicants on the decision of SAAP v Minister for Immigration & Indigenous Affairs (2005) 83 ALD 545.
However, specific reference was not made by the applicants to the application of s.422B of the Migration Act. Not surprisingly, given that it was a recent decision, the applicants did not rely upon the Full Court of the Federal Court decision in Lay Lat, referred to earlier in this judgment.
It is appropriate for the court to consider the application of s.422B in the light of that recent Full Court decision of the Federal Court.
It is appropriate for the Court to consider the application for s.422B of the Migration Act in the light of the Full Court decision in Lay Lat. The decision of that Court set out in paragraph 34 of this judgment whilst perhaps being regarded as obiter by that Full Court was applied and adopted by another Full Court although constituted by the same members on the same day in a decision delivered on the same date in the matter of SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 (SZCIJ) at [7] – [8]. Accordingly, I have no doubt that this Court is bound by the decision of the Court in Lay Lat which although perhaps obiter in that case is certainly not obiter in the other decision delivered by the same Court in SZCIJ. To the extent that it is necessary to do so I therefore otherwise reject the application on the ground that as a result of s.422B of the Migration Act the common law natural justice rule did not apply to the review before the Tribunal as submitted by the First Respondent aside from any allegations which I have rejected of any suggested failure by the Tribunal to comply with the procedural requirements set down by the provisions of the Migration Act.
Conclusion
Accordingly it follows that the application should be dismissed with costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 31 October 2006
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