MZXHY v Minister for Immigration - [2006] FMCA 1626

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXHY v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1626

MIGRATION – Appeal from Refugee Review Tribunal – grounds largely an endeavour at merits review – application to table new evidence – not granted – application dismissed.

Migration Act 1958, ss.91R, 91R(1), 417

Applicant:

MZXHY

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 354 of 2006

Judgment of:

Burchardt FM

Hearing date:

9 October 2006

Date of Last Submission:

9 October 2006

Delivered at:

Melbourne

Delivered on:

13 November 2006

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms S. Burchell

Solicitors for the Respondent:

Clayton Utz Lawyers

ORDERS

The application filed 14 March 2006 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 354 of 2006

MZXHY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The matter before the Court is an amended application filed by the Applicant on 10 July 2006 in which the Applicant applies for prerogative relief to quash the decision of the Second Respondent the Refugee Review Tribunal (“the Tribunal”) made on 31 January 2006. The Tribunal’s decision affirmed the decision of the First Respondent’s delegate to refuse to grant the Applicant a protection visa.
The Applicant arrived in Australia on a visitor visa subclass 676

(class TI) on 3 April 2005. He was born on 23 June 1981 and is a male citizen of Sri Lanka. On 16 May 2005 the Applicant lodged an application for a protection visa (class XA) with the then Department of Immigration & Multicultural & Indigenous Affairs.

On 20 September 2005 the delegate of the First Respondent refused to grant a protection visa to the Applicant. On 17 October 2005 the Applicant applied to the Tribunal for review of the delegate’s decision.
The Tribunal subsequently wrote to the Applicant at his address for service inviting him to attend a hearing of the Tribunal on 18 January 2006 to give oral evidence and present arguments in support of this case. The Applicant did indeed appear at the hearing and gave oral evidence with the assistance of an Interpreter in the Sinhalese language.
The Tribunal affirmed the delegate’s decision by reasons for decision dated 31 January 2006 and handed down on 15 February 2006.

The Applicant filed an application for judicial review of the Tribunal’s decision in this Court on 16 March 2006.
The Applicant has filed contentions of fact and law which advance a number of submissions. There is some force in the submission made by the First Respondent that all the submissions advanced by the Applicant amount to little more than endeavours to engage in merit review. It is also not easy to disaggregate the Applicant’s submissions into any very clear grouping.
By contentions of fact and law the First Respondent has sought to categorise the submissions made by the Applicant, but while I have found that categorisation helpful to an extent, I prefer to work through the Applicant’s submissions seriatim.
In paragraphs 4 to 8 of his contentions of fact and law the Applicant set out his argument that he fears persecution for reason of political opinion imputed to him by the Liberation Tamil Tigers of Eelam (“the LTTE”), records that the object of the LTTE is “to gain a political result by armed insurrection and to further that object by instilling fear in the Sri Lankan community by acts of violence”, asserts that the events described by the Applicant and attributed to the LTTE would be consistent with the known manner of operation of the LTTE, and that a person such as the Applicant might be seen by the LTTE to be a threat to the LTTE’s political objective. The Applicant asserted that it would be irrelevant that in fact the Applicant may have held no political opinion, because perception of the persecutor is the relevant test.
In paragraph 8 of his contentions of fact and law the Applicant stated:
“The claims of the Applicant, therefore, were capable of demonstrating that the persecution feared by the Applicant in future, if he was returned to Sri Lanka, was persecution for reason perceived political opinion. It is our submission that the Tribunal erred in treating that material as not coming within the ambit of s.91R of the (Migration Act 1958 (“the Act”)), especially given at page 15 of the decision, the Tribunal states

“I subsequently also find that the Applicant did receive various death threats from the LTTE as claimed”.
In my opinion, the assertions here made with the exception of the reference to the Tribunal’s finding about death threats, amount to no more than a submission that the Applicant, if he had been believed might have succeeded in his claim. His problem however was that he was not believed. There is no jurisdictional error shown in this part of the Applicant’s contentions of fact and law.
Insofar as the Tribunal’s decision did, as the Applicant rightly claims, assert at page 15 “I subsequently also find that the Applicant did receive various death threats from the LTTE as claimed”, that extract clearly involved a typographical error. I accept without any hesitation the submission of the First Respondent to this effect.
What the relevant paragraph said in full was:
“I have already found that the Applicant was never involved in any business in partnership with a man called Subramaniam in Batticaloa and was never involved in any business in Batticaloa whatsoever. Based on this finding I now find that the Applicant’s alleged business partner was never killed by the LTTE as claimed and that the Applicant was never suspected by the LTTE of being involved in any way in the Karuna faction of the LTTE because of his alleged relationship with this alleged business partner. I subsequently also find that the Applicant did receive various death threats from the LTTE as claimed, his alleged employees in Batticaloa were never threatened by the LTTE, his alleged business premises in Batticaloa or his business premises in Anuradhapura were never attacked by LTTE members, he did not receive threatening phone calls and anonymous letters, people did not go to his father’s business or to his family home enquiring about him, armed men did not threaten his mother in any way and he was never the subject of kidnap attempts by LTTE members as claimed.”
It is quite clear from that list of the assertions made by the Applicant which were rejected by the Tribunal that the Tribunal did not accept the Applicant’s evidence on any of these matters and that the word “not” should have been included between the words “did” and “receive” various death threats.
By paragraphs 9 to 14 of his contentions of fact and law the Applicant traversed the Tribunal’s task in considering whether the Applicant would have a well founded fear of persecution for reason of political opinion if he were to return to Sri Lanka and the Tribunal’s findings in that regard.
At paragraph 12 of his contentions of fact and law the Applicant noted the finding of the Tribunal it was not satisfied that the Applicant was ever involved in any business whatsoever including any business in partnership with Subramaniam.
In paragraph 13 of his contentions of fact and law the Applicant referred to the possibility that the Tribunal might rely upon impressions of the Applicant’s case from perusal of the relevant file and a truncated hearing process and went on to assert in paragraph 14 that the Tribunal erred in not accepting the explanation offered by the Applicant for the non production of the certificate of business. The Applicant’s submissions assert that the Tribunal addressed the wrong issue by placing too much reliance on the fact that the Applicant was able to produce business registration certificates for two other businesses that he operated with his father in Anuradhapura. It was asserted by the Applicant that the Tribunal failed to take into account the fact that given that the Applicant operated these businesses with his father who is still alive and residing in Sri Lanka, the opportunity to provide such certificates was a lot easier.
In summary however, when analysed, these assertions really do no more than record what the Tribunal did. The Tribunal, in my opinion, was aware of what the Applicant said about the failure to provide the relevant business certification, and dealt with that matter expressly in its reasons for decision. The relevant extract from the reasons for decision is set out in pages 13 and 14 of the Tribunal’s reasons for decision. It reads as follows:
“the applicant has claimed that he was involved in a business in the city of Batticaloa in partnership with a man called Subramaniam during 2004. However, the applicant’s evidence at the hearing about this business in Batticaloa was vague and unsatisfactory. Despite his claims that he operated this business in Batticaloa with Subramaniam, the applicant was not able to produce a certificate of business registration or any other documents whatsoever to evidence the existence of this business. This was despite being able to produce business registration certificates for two other businesses that he operated with his father in Anuradhapura. At the hearing the applicant claimed variously that he had lost the business certificate when closing the shop and that his father had not been able to travel to Batticaloa to get a replacement certificate because of the troubles in the area.
The applicant was also not able to name the street on which this business was located despite claiming to have operated the business for many months. He claimed that the street was located on the main road in Batticaloa which, as was explained to the applicant at the hearing, would mean it would be more likely that he would know the name of the street. He was also unable to name the side street located near the business. He claimed at one point in the hearing that the street was named in Tamil but did not provide any explanation as to why he could not recall this name at all. It was strongly evident from the applicant’s evidence that he lacked any knowledge of the main streets of Batticaloa as he was totally unable to name even one of them, being the one that his business was allegedly located on.
Based on the evidence before me I am not satisfied that the applicant was ever involved in any business whatsoever in Batticaloa, including any business in partnership with Subramaniam and I find that the applicant was never involved in any business in partnership with a man called Subramaniam in Batticaloa and was never involved in any business in Batticaloa whatsoever.”
Those reasons do not, in my opinion, show that the Tribunal fell into jurisdictional error in considering this aspect of the matter. To the contrary the Tribunal was well seized of what its task was, namely to decide whether it accepted or did not accept the Applicant’s evidence. It clearly failed to accept the Applicant’s evidence and in my opinion there is nothing in the relevant extract of the reasons for decision that supports the proposition that the Tribunal either failed to address any relevant consideration advanced by the Applicant or that it misconceived its role in addressing those issues that were advanced.
Paragraphs 15 to 24 of the Applicant’s contentions of fact are difficult to categorise. They canvas findings made by the Tribunal with which the Applicant disagrees, the matter of the typographic error already referred to, the possibility that the Tribunal itself demonstrated error because its own typographical error should as it were have informed its assessment of the letter dated 10 February 2003 from M A Mageed, this being said by the Applicant to have been a typographical error itself.
I do not think that these paragraphs of the Applicant’s contentions of fact and law amount to any tenable criticism of the Tribunal’s decision.
In paragraphs 25 and 26 of his contentions of fact and law the Applicant submitted that the Tribunal had failed to consider various factors which were:
·The killing of the business partner by the LTTE;
·The Applicant being suspected by the LTTE of being involved in the Karuna faction;
·The Applicant receiving death threats from the LTTE;
·The Applicant’s employees being threatened by the LTTE;
·The Applicant’s business premises being attacked by LTTE members;
·The Applicant receiving threatening phone calls and anonymous letters;
·The Applicant’s mother being threatened by armed men;
·The Applicant being subject to a kidnap attempt by the LTTE.
It was submitted that there was an obligation upon the Tribunal to consider the above factors and not to simply dismiss them because the Tribunal had come to the conclusion that the Applicant was never involved in any business and partnership with a man called Subramaniam in Batticaloa and was never involved in any business in Batticaloa whatsoever. It was submitted that there was insufficient evidence for the Tribunal to conclude that the Applicant was never in business in Batticaloa with Subramaniam.
I have already set out the passage of the Tribunal’s decision that dealt with the various claims relating to the Tribunal’s finding that the Applicant was not involved in business in Batticaloa.
It is true as the Applicant asserts that the findings in relation to the matters listed in paragraph 20 were said by the Tribunal to follow from the findings made about the business.
The Tribunal relevantly said:
“I have already found that the Applicant was never involved in any business and partnership called Subramaniam in Batticaloa and was never involved in business in Batticaloa whatsoever. Based on this finding … (the Tribunal went on to dismiss the matters contended for by the Applicant referred to paragraph 20 above).”
Reading the Tribunal’s reasons as a whole however, and noting the other matters set out in pages 15 and 16 of the Tribunal’s decision (CB 186-187), in my opinion it is clear that the Tribunal was very heavily influenced by the findings that it made about the conduct or more accurately non conduct of the business alleged in Batticaloa.
However, given the finding made on the Batticaloa issue, the findings made by the Tribunal in large part follow as a matter of necessity.

For example, if there was no business in Batticaloa then it would necessarily follow that there can not have been any alleged business partner who was killed. Similarly the employees alleged to exist in Batticaloa could never have been threatened by the LTTE nor the alleged business premises in Batticaloa attacked. Indeed all the matters set out in the first paragraph on page 15 of the Tribunal’s decision, in my opinion follow inexorably from the finding that there was no business in Batticaloa in the first place.
It is true that the findings in relation to the attacks on the business premises in Anuradhapura, the threatening phone calls, the anonymous letters alleged together with the kidnap attempts and the other matters referred to in that paragraph might on one view be said not to follow as a matter of necessary logical progression from the finding that there was never a business in Batticaloa, but the Applicant’s case was always that these matters happened precisely because of the business in Batticaloa, the nature of his relationship with Subramaniam and the other evidence of the matters that had flowed from the business relationship.
Furthermore, in circumstances where the Tribunal was required to evaluate the Applicant’s credit, the findings made by the Tribunal do not in my opinion show a failure to have a proper regard to the Applicant’s claims.
On the evidence before it the Tribunal was entitled to come to the findings that it did.
I am keenly conscious that this part of my reasons for judgment goes close to approaching the Tribunal’s decision as if this were a matter of merits review. It should be emphasised that I have approached the matter in the way that I have because of the way in which the Applicant’s contentions of fact and law themselves approached the matter.
It is in my opinion not at all clear that even if the criticisms advanced by the Applicant of the Tribunal’s decision making process were correct that this would amount to jurisdictional error. Indeed I hold the view that the Tribunal clearly understood what its task was, namely to decide whether the Applicant was a person to whom the Refugees Convention applied, and to approach the Applicant’s evidence in such a way as to properly consider the various contentions that the Applicant advanced.

The Applicant’s amended application

In the amended application the Applicant raises 6 particulars of alleged jurisdictional error. They are:
a)
The tribunal has not addressed the applicant’s fundamental concern as to his safety and wellbeing from the terrorist group called the Liberation Tamil Tigers of Eelam and the security forces/government authorities or given it any weight.

The Tribunal has failed to properly consider the past record of the LTTE and security forces and the danger to the applicant based on that past record and the tribunal has failed to explain why the circumstances he experienced in the past is unlikely to reoccur given that it is relevant to a material issue.
b)The claims of the applicant were capable of demonstrating that the persecution feared by the Applicant in future, if he was returned to Sri Lanka, was persecution for reason of perceived political opinion. The Tribunal erred in treating that material as not coming within the ambit of s.91R of the Act, especially given at page 15 of its decision, the Tribunal states “I subsequently also find that the Applicant did receive various death threats from the LTTE as claimed”.
c)There was insufficient evidence for the tribunal to conclude that the applicant was ever involved in any business whatsoever in Batticaloa including any business in partnership with Subramaniam.
d)The tribunal erred by not considering the following factors:
the killing of the business partner by the LTTE
the applicant being suspected by the LTTE of being involved in the Karuna Faction
the applicant receiving death threats from the LTTE
the applicant’s employees being threatened by the LTTE
the applicant’s business premises being attacked by LTTE
members;
the applicant receiving threatening telephone calls and
anonymous letters
the applicant’s mother being threatened by armed men
the applicant being subject to kidnap attempts by the LTTE
e)The tribunal did not consider the question of state protection
f)The tribunal erred in law in failing to properly apply the real chance test as laid down. The tribunal did not undertake the required speculation on the chance of persecution emerging from a consideration of the whole of the material before the tribunal.
I have set the Applicant’s particulars out seriatim because, as has been said above, the contentions of fact and law failed to elucidate the grounds of the application and are in some ways not particularly helpful.
The matters referred to in paragraph (a) above need to be seen in proper context. The Tribunal was well aware of the Applicant’s claims about his concerns as to his safety and wellbeing from the LTTE. From pages 4 to 6 of the Tribunal’s reasons (CB 175 – 178) the Tribunal set out at length the Applicant’s claims in this regard. Reading the Tribunal’s reasons as a whole, it seems clear to me the Tribunal was cognisant of the Applicant’s claims, but rejected them because it did not believe him.

At page 16 of its reasons (CB 187) the Tribunal said:
“The applicant has claimed that if he returned to Sri Lanka now or in the reasonably foreseeable future he feared he would be killed by the LTTE or its supporters because they accused him of being a supporter of the breakaway Karuna faction of the LTTE through the applicant’s association with his business partner Subramaniam. However, I have already found that the Applicant was never in a business partnership with Subramaniam in the past and I also have already found that the applicant was never suspected by the LTTE of being involved in any way in the Karuna Faction of the LTTE. Based on these findings and on the evidence before me I now find that if the applicant returned to Sri Lanka now or in the reasonably foreseeable future there is no chance that he would suffer any serious harm that can be regarded as persecution as envisaged by s.91R(1) of the Act because of his alleged support of the breakaway Karuna Faction of the LTTE through his association with his business partner Subramaniam.”
This passage seems to me to be a complete answer to particular (a). The Tribunal did turn its mind properly to the issues the Applicant raised.
Particular (b) of the Applicant’s claim was that the Tribunal erred in not treating the material put by the Applicant as coming within the ambit of s.91 of the Act and refers to the sentence “I subsequently also find that the Applicant did receive various death threats from the LTTE as claimed”.
For reasons set out earlier in this judgment I find that the passage to which reference is made involves a typographical error and should have read “I subsequently also find that the Applicant did not receive various death threats from the LTTE as claimed”. The Tribunal did not misunderstand the ambit of s.91R of the Act. Rather it failed to believe the Applicant. There is no force in particular (b).
Particular (c) is on its face a simple merit review matter. The Tribunal had extensive evidence including the Applicant’s own evidence before the Tribunal, as to what might or might not have occurred in relation to the alleged business partnership with Subramaniam. The Tribunal’s record of the evidence before it given by the Applicant is at pages 9 to 13 of its reasons (CB 180 – 184), and constitutes a not insignificant body of evidence. The Tribunal was entitled to act on that evidence and did so.
The matters alleged in particular (d) above likewise cannot be sustained. All the matters itemised in that particular were considered in terms by the Tribunal. The difficulty from the Applicant’s perspective is that his claims were simply not accepted. It cannot for an instant be said that these matters were not the subject of consideration by the Tribunal. They were the subject of express negative findings by it.
Particular (e) raises the question of state protection. The Tribunal dealt with this aspect of the matter in these terms in page 13 of its reasons (CB 184);
“The applicant was asked why he could not seek protection from the police or other authorities in Sri Lanka even if he feared the LTTE would harm him. He stated that the Sri Lankan police were very weak and were not capable of providing protection. He claimed that the LTTE were very powerful, having killed presidents in the past and having recently killed a foreign minister, so he would not be protected in Sri Lanka. He was asked if there was any reason why Sri Lankan authorities would deny him protection if he asked for it and he responded because he was doing business with Subramaniam he was speaking on behalf of Tamils in the area so the police and security forces were well aware of the situation. He feared that they might believe he was helping Tamils as well.
The applicant indicated that apart from his fear of the LTTE that he had mentioned at the hearing he did not have any other reasons to fear a return to Sri Lanka.”
I have already recorded (at paragraph 35 above) the Tribunal’s conclusion as to what might happen if the Applicant was to return to Sri Lanka. It is quite plain that the Tribunal did consider the question of state protection, but decided it adversely to the Applicant because it did not believe his primary claims in relation to the LTTE.
In respect of particular (f), the Tribunal was well seized of the real chance test. It expressly used this term in the relevant passage for its reasons for decision referred to above which I here repeat:
“I now find that if the Applicant returns to Sri Lanka now or in the reasonably foreseeable future there is no real chance that he would ever suffer any serious harm that can be regarded as persecution as envisaged by section 91R(1) of the Act.”

The Applicant’s new material

It should be noted that the question of further evidence was raised before the Tribunal. The Tribunal stated at page 13 of its reasons (CB 184) that:
“The applicant’s advisor indicated that he had nothing to add but sought permission to produce a brief submission after the hearing. The advisor was told that the Tribunal would not finalise its decision before Friday 20 January 2006 to allow him time to forward such brief submission. At the time of making this decision no such submission had been received by the Tribunal.”
It should also be noted that this gave the Applicant in effect two days to present such material as the Applicant’s evidence was given to the Tribunal on 18 January 2006.
It should also be noted however that at the hearing, in response to questions from the Tribunal as to whether there was a certificate of business registration or any other documents to evidence the business with Subramaniam, “The applicant claimed variously that he had lost the business certificate when closing the shop and that his father has not been able to travel to Batticaloa to get a replacement certificate because of the troubles in the area” (CB 185).
At the hearing before this Court when invited to make any submissions, the Applicant provided two documents which he sought to tender to the Court. The tender of these documents was opposed by counsel for the First Respondent.
I allowed the two documents to be received and marked for identification. I did so because the Applicant is self represented and it is in my opinion important to allow an unrepresented Applicant to feel that they have had a fair opportunity to say what they wish to say and put such material as they may desire before the Court.
The document marked MFI1 purports to be a certificate of registration of an individual but according to its terms is clearly a registration of business certificate. Next to the heading “The Business Name” there are the names of the Applicant and one Subramaniam Rasaputram.

An address is given for the business in Batticaloa and the date of commencement of the business is said to be 6 May 2004. While there are some other details of the form that might seem internally inconsistent, such as the fact that the nationality of the individuals are given as Sinhalese and Tamil when one would have thought that nationality would be Sri Lankan, on its face one might infer that this document was the sort of business certificate the absence of which was so damaging to the Applicant’s case before the Tribunal.
The other document sought to be submitted would appear on its face to be a certificate of death in respect of “Subramaniam Rasapuththaram”, which is not precisely the same spelling as that in the other document. It appears to record the death of that individual on 30 July 2004.
This Court in cases such as these is not sitting self evidently as a Court in first instance. It is exercising the powers of the High Court pursuant to s.75 of the Constitution in respect of prerogative writs to Commonwealth officials.
I do not believe there is power in this Court to receive evidence in the manner that the Applicant seeks. What the Court is concerned with is the presence or absence of jurisdictional error such as to give rise to prerogative relief in respect of the proceedings before the Tribunal.
These documents were not before the Tribunal and the Tribunal’s failure to consider them self evidently gives rise to no error on its part.
Having said that, a fair reading of the Tribunal’s decision suggests that the absence of the certificate of the business conducted with Subramaniam by the Applicant played a very significant part in the Tribunal’s process of reasoning. Similarly, the presence of the death certificate had it been available before the Tribunal might well have caused the Tribunal to approach the existence of Subramaniam in a different way.
While one is necessarily dealing with a hypothesis, one might reasonably infer that had these documents been available a different outcome would have been very possible.
While for the reasons earlier expressed there is nothing the Court can do to assist the Applicant arising out of these documents in terms of overturning the Tribunal’s decision, these matters may very well be of assistance to the Applicant should he seek to make any application pursuant to s.417 of the Act to the Minister.
For the purposes of clarity, I should make it clear that if the two documents sought to be tendered by the Applicant before the Court are genuine, the disposition of the Applicant’s application to remain in Australia, as things presently stand, is highly likely to be perverse.
Nonetheless, and for the foregoing reasons, it follows that the application must be dismissed and there be the usual orders as to costs.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 13 November 2006