MZXIL v Minister for Immigration
[2008] FMCA 1441
•17 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXIL v MINISTER FOR IMMIGRATION | [2008] FMCA 1441 |
| MIGRATION – Review of decision not to grant a protection visa – Tribunal found state protection available – agitation for a rehearing on the merits – the applicant disputed the Tribunal’s finding that state protection was available – open to the Tribunal on the evidence – no jurisdiction error disclosed – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 424A(3)(a), s.424A(3)(b), 425 and 474 |
| Minister for Immigration and Multicultural Affairs v S152/2003 [2004] 222 CLR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 |
| Applicant: | MZXIL |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | MLG 33 of 2008 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 1 August 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 17 October 2008 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Dinelli |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
The amended application filed on 22 April 2008 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 33 of 2008
| MZXIL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks to review a decision of the Refugee Review Tribunal (the Tribunal) handed down on 19 December 2007.
That decision affirmed an earlier decision of the first respondent's delegate to refuse a protection visa to the applicant.
This application is the third by the applicant, having successfully reviewed two earlier decisions of the Tribunal in this Court.
It can be said that the principal ground for review in this matter is that the Tribunal fell into jurisdictional error when it found that the applicant was not in need of Australia’s protection because of the availability of state protection in his country of origin, notwithstanding findings that he faced the real prospect of serious harm for Convention related reasons should he be returned there.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia on 13 March 2005.
On 27 April 2005 he lodged an application for a protection visa on the ground that he faced persecution at the hands of supporters of the People Alliance Party (PA) in Sri Lanka because of his involvement in the opposition party of the United National Party (UNP). In addition he claimed that he had a profile as the private secretary of a UNP politician, and further that he was a member of a particular social group; namely his wife's political family.
Of significance, from the applicant's point of view, his wife also made application for a protection visa, which application ultimately proved successful. He considers it an unfairness and an injustice that his wife was successful whereas he was not in circumstances where they both made a joint application to the Tribunal for a review of an earlier decision by the first respondent's delegate to refuse them both a protection visa. He complains about the Tribunal having decided to have separate hearings for himself and his wife.
The Tribunal hearing that is the subject of this review was held on 10 October 2007.
The Tribunal’s decision
In the decision under review, the Tribunal made the following findings;
(i)The applicant was a well-known and well-recognised supporter of the UNP, had worked for a high profile member of that party as claimed and held other positions in that party. He had also contested provincial elections;
(ii)The applicant and members of his family had been subjected to acts of violence and threats of violence; indeed, threats to their life for a Convention related reason; namely the political opinion of the applicant;
(iii)The applicant was a member of a social group, being the family of his wife who had a political profile and accordingly came within the ambit of a Convention related reason;
(iv)The applicant's assertions that all reports made against him were false or fabricated whilst those made against others by him were not, was not accepted by the Tribunal;
(v)The applicant's explanation for alleged harassment of a 40-year old farmer by the applicant and other supporters of the UNP was implausible and the conduct of the police investigating seemed to be the ordinary work of police conducting an investigation; and further, they were dealing with a law of general application;
(vi)The Tribunal did not accept the applicant's allegation against police that their attempt to have him appear on summons was discriminatory and based on the applicant's political opinion or membership of that particular social group. The Tribunal considered the evidence disclosed the police followed reasonable procedures in pursuing allegations in accordance with a law of general application;
(vii)The Tribunal did not accept the applicant's claims that the police had refused to take his reports or the reports of members of his family;
(viii)The Tribunal found as being speculative the applicant's claim that the police in Sri Lanka kept two sets of complaint books. It further found that even if such was the case, the Tribunal did not accept that such a practice was used to withhold information from the applicant;
(ix)After considering all the evidence, including the applicant's own evidence, together with independent country information, the Tribunal concluded the applicant had access to police who acted reasonably, adequately and efficiently in response to his reports and complaints; and
(x)Although there is a real chance in the reasonably foreseeable future that the applicant would, if he returned to Sri Lanka, face serious harm for reason of his political opinion and/or membership of a particular social group, the Tribunal went onto to find that Sri Lanka provides a reasonably effective police force and a reasonably impartial justice system which would not be withheld from the applicant for reason of his political opinion and/or membership of that social group. The Tribunal also found that the applicant's fear of returning to Sri Lanka did not amount to persecution for the purposes of the Convention and his unwillingness to return and to avail himself of such protection was not justified. Accordingly, the Tribunal affirmed the delegate's decision not to grant a protection visa.
The applicant’s grounds for review
In his amended application for review the applicant has set out nine grounds. I shall deal with each of those grounds. The applicant also provided lengthy written contentions of fact and law, most of which, however, sought to state the law applicable generally to these matters and only at the end addressed the pertinent issues before me in this review.
First ground
(a)The applicant contends the Tribunal misconstrued or misinterpreted the Convention criterion as it did not consider whether the applicant, owing to a well-founded fear, is unable or unwilling to avail himself of the protection of his country of residence.
(b)From a reading of the Tribunal's decision it is evident, in my view, that the Tribunal first made reference to the appropriate criterion to be applied in this regard. In addition, the Tribunal made note of Sri Lanka's obligation to protect the lives and safety of its citizens (see Minister for Immigration and Multicultural Affairs v S152/2003 [2004] 222 CLR 1 at 11 [26]). The Tribunal found that the applicant had availed himself in the past, on the evidence before it, of the protection offered by his country of nationality and found - a finding certainly open to it - that the police had acted in an impartial manner and provided adequate protection. The Tribunal also noted that the police took no action against the applicant in circumstances where it was found that allegations made against him were unfounded. In the particular (that is in respect of the applicant’s circumstances), but also in the general, as gleaned from independent country information about the police and how they operated (including a consideration of complaints in that regard) the Tribunal was able to make the findings it did about the impartiality of the police force and the operation of the justice system in Sri Lanka. They were findings open to it on the evidence. There appears to be no failure by the Tribunal as suggested by the applicant, to consider whether the applicant was precluded from availing himself of the police protection, having found he did so in the past, and also finding that they acted impartially when unjustified complaint was made against him.
Second ground
(a) In this ground the applicant contends that the Tribunal failed to properly consider the adequacy of state protection and how that inadequacy would fail to protect him from persecution at the hands of members and supporters of the PA. In fact the Tribunal made a very clear finding that the applicant had a well-founded fear that was Convention related but, nonetheless, that well-founded fear did not amount to persecution because of the availability of state protection in Sri Lanka – that there was indeed adequate protection available to the applicant.
Third ground
(a) The applicant's asserts that the Tribunal's finding, on the one hand that he was at the risk of suffering serious harm for a Convention reason, is inconsistent with the conclusion reached that he is not subject to persecution. I do not accept this to be so. It is possible, which the Tribunal found, for there to be that risk, but protection to also be available. Insofar as the applicant asserts that the state protection could not guarantee his safety, the first respondent relies upon the comments made by the majority, Gleeson CJ, Hayne and Haydon JJ, in Minister for Immigration and Multicultural Affairs v S152/2003 where they stated, "No country can guarantee that its citizens will at all times be safe from violence."
(b) To the extent that the applicant asserts that the Tribunal was wrong when it found that unacceptable police activity in Sri Lanka is largely directed to a different group or groups from that of which the applicant is a member, the applicant is inviting this court to engage in a merit's review of the Tribunal's decision. In my view, having regard to the evidence presented to and considered by the Tribunal (including independent country information) the conclusion reached by the Tribunal in this regard was one open to it.
(c) It is trite law to say that this Court is not able to engage in a merit's review of the Tribunal's decision, which the applicant by this ground seeks this Court to do. (See Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 at 272 per Mason CJ, Toohey, McHugh and Gummow JJ).
Fourth ground
(a) This ground relates to an apparent contention by the applicant that the Tribunal misapplied s.91R of Migration Act 1958 (the Act). It is contended that the Tribunal failed to consider the persecution that the applicant feared in the future.
(b) I am in agreement with the first respondent's response that this ground is misconceived. The Tribunal recited correctly the elements of s.91R and applied them to the facts of the case. A fair reading of the Tribunal's decision shows that it did consider the future circumstances of the applicant. It also considered the past experiences of the applicant in relation to his claims, but concluded that, as to the future, the applicant could avail himself of state protection.
Fifth to Seventh grounds
(a) These grounds appear to challenge the findings of the Tribunal that Sri Lanka could provide the applicant with a reasonably effective and an impartial police force and justice system.
(b) The Tribunal examined and considered the evidence provided by the applicant himself as to the treatment afforded him by the police in relation to the complaints made by him to them and also the investigation by the police of him in relation to complaints made against him. The conclusion the Tribunal reached based upon that evidence, in my view, exhibited probative logic and was open to the Tribunal. In addition, the independent country information which the Tribunal was entitled to rely on gave further confirmatory support to the conclusion reached by the Tribunal.
(c) To the extent the applicant wishes to challenge the findings of the Tribunal in these regards, the applicant is inviting the Court to enter into a merit's review which it does not have jurisdiction to do.
Eighth ground
(a)Under this ground the applicant alleges that there has been a breach of s.424A of the Act in that there was a failure to provide a notice in writing of the particulars of information which would the reason, or part of the reason, for affirming the decision under review.
(b)Simply put, the first respondent contends that there was no such obligation as the information the subject of this ground was subject to the exceptions pursuant to either s.424A(3)(a) or s.424A(3)(b) of the Act. Section 424A(3)(a) provides that the requirements of s.424A do not apply to information, "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member." To reach its conclusion that Sri Lanka provides a reasonably effective and impartial police force and justice system the Tribunal looked to and relied upon independent country information. This information clearly falls within the category contemplated by the exception in the s.424A(3)(a).
(c)Insofar as there was information provided by the applicant s.424A(3)(b) applies. To the extent, therefore, that the Tribunal relied on the applicant's own evidence about the effectiveness of state protection, this evidence falls within the exception.
Ninth ground
(a)Under this ground the applicant contends that there was a breach of procedural fairness either through a breach of s.424A (as set out above) or s.425.
(b)Insofar as it is contended that there was a breach of s.425 it is to be noted that the applicant was afforded a hearing. His complaint that he was not allowed to expand on matters he believed appropriate in furtherance of his application through the control exercised by the Tribunal, and because of the Tribunal's reliance on the evidence of his wife, instead of on his, amounts to a failure to provide a fair hearing.
I say that nothing in what the applicant said to this Court gives any indication of what he was precluded from saying to the Tribunal that may have carried some weight and may have, if considered by the Tribunal, led to a different conclusion. The fact that the Tribunal exercised control of the process before it to ensure an efficient hearing does not lend itself to a conclusion that a fair hearing was denied the applicant. The Tribunal was entitled to rely on evidence presented by the applicant's wife to the extent it did. In my view, on a fair reading of the Tribunal's decision it gave full consideration to all the matters that the applicant wished to and needed to present in support of his application before it. As I have said, there is nothing in what the applicant said in the hearing before me that would indicate that there was any significant evidence or submission precluded by the Tribunal that may have amounted to a denial of a fair hearing.
At the hearing
In the hearing before me the applicant complained that the Tribunal did not consider material submitted by him. He was unable to identify any material that was not considered. It became evident, however, that he took issue with the Tribunal about what weight the Tribunal had given to such material. Again, this complaint is one that seeks a merits review, which this Court cannot entertain.
He also made submissions about the evidence presented to the Tribunal concerning his circumstances and experiences and challenged the Tribunal’s conclusions having regard to these matters. He was unable to highlight any evidence not considered by the Tribunal, but sought, in effect, to agitate for a merits review of the Tribunal’s findings.
The applicant also complained about the conduct of the hearing.
He objected to the brevity of the hearing (said by him to be 1.25 hours); the fact that his wife was afforded in her Tribunal hearing 2 hours and the fact he was cut short by the Tribunal member when reciting a history because his wife had given that evidence before. All this caused him disquiet and created a sense of being denied a fair hearing. He wanted to be the one to tell the story, not his wife (as I understood his complaint). As stated above, the Tribunal can, and must of necessity at times, control the hearing process to maintain focus and ensure time is not wasted. Nothing in what the applicant complained to me about appears to warrant a determination by me that the hearing process was unfair. It appears that the evidence of the wife, which the Tribunal accepted, went to those matters the Tribunal found supported the applicant and nothing was to be achieved by a repeat of it by the applicant. The applicant was unable to show how he was denied a fair hearing in these regards.
Conclusion
The principal ground for review is that the Tribunal erred in finding that the applicant could avail himself of effective state protection should he return to Sri Lanka. On the evidence properly before the Tribunal, such a finding was open to it. By his submissions made before me at the hearing, and from the written contentions of fact and law submitted on his behalf, it is evident that by this review the applicant seeks a merits review of that finding. As stated, this Tribunal does not have jurisdiction to engage in such a review.
The other grounds covered above do not disclose an error on the part of the Tribunal, let alone a jurisdictional error.
The Tribunal’s decision is a privative clause decision within the meaning of s.474(2) of the Act and as such it cannot be subject to review unless a jurisdictional error has been shown. Accordingly, the decision under review is protected as a privative clause decision under s.474 (1) and the amended application must be dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Associate:
Date:17 October 2008
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