MZXJO v Minister for Immigration & Anor
[2007] FMCA 760
•22 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXJO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 760 |
| MIGRATION – Protection visa – whether jurisdictional error – whether failure to properly interpret s.91R of the Migration Act 1958 – whether failure to consider State protection – whether no evidence – whether breach of procedural fairness and/or failure to review – application dismissed – no jurisdictional error. |
| Migration Act 1958, ss.36(2), 65, 91R, 417, 422(B), 424A |
| Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 Minister for Immigration Multicultural and Indigenous Affairs v Singh (2002) 209 CLR 523 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 378 Prahastonr v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260-268 Arumugam v Minister for Immigration and Multicultural Affairs (1999) FCA 251 Canada (Director of Investigation and Research) v Southam Inc (1997) 1 SCR 748 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Australian Broadcasting Commission v Bond (1990) 170 CLR 321 SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 |
| Applicant: | MZXJO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 530 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 8 March 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 22 May 2007 |
REPRESENTATION
| Applicant: | In person (assisted by an interpreter) |
| Counsel for the First Respondent: | Ms S. Burchell |
| Solicitors for the First Respondent: | Australian Government Solicitor |
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 530 of 2006
| MZXJO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 9 March 2006. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent not to grant to the Applicant a protection visa.
The Applicant now appears self-represented though it is noted relies upon an Amended Application filed 31 August 2006 together with contentions of fact and law filed 16 October 2006 prepared by the Applicant's former lawyers.
The Applicant appeared before this court assisted by an interpreter. It should be noted at the outset that the Applicant wished to draw to the attention of the court that circumstances have changed so that whereas in the claim before the Tribunal reference was made to the Applicant's political association with a particular Member of Parliament, he now wished to bring to the attention of the court that his mother has since married the Member of Parliament who has become the Applicant's stepfather. This he asserted was a change in circumstances which is relevant to his claim for a protection visa.
As a preliminary matter the court indicated to the Applicant that that was an issue which he may well bring to the attention of the First Respondent, but is not a matter which the court should consider as relevant in this application for judicial review, as those events clearly post-dated the Tribunal hearing and delivery of its decision.
Nevertheless, it is clear to the court that if the circumstances have changed significantly then that is a matter which the Applicant may well consider is worthy of bringing to the attention of the Minister who may consider an exercise of discretion pursuant to s.417 of the Migration Act 1958 (the Act) or otherwise deal with the new information. That of course will be entirely a matter for the Minister and the Minister's Department.
The Applicant arrived in Australia on a visitor's visa on 30 August 2004. He is a male citizen born in Sri Lanka in 1982. On 4 October 2005 he lodged an application for a protection visa. He supported the application with an undated statutory declaration (Court Book pp.35-43). A delegate of the First Respondent refused to grant the protection visa on 6 December 2005. The Applicant then applied on 14 December 2005 to the Tribunal for review of the delegate's decision.
The Applicant accepted an invitation by the Tribunal to attend a hearing and did so on 23 February 2006. Prior to the hearing the Applicant provided the Tribunal with a further statutory declaration dated 14 February 2006 (Court Book pp.201-207). Other documents provided included police reports and newspaper articles.
Applicant's claims
The details of the Applicant's claims have been set out in the original statutory declaration and subsequent statutory declaration dated 14 February 2006. A fair and accurate summary of the contents of those declarations appears in the First Respondent's contentions of fact and law as follows:-
“14.The applicant claims in his statutory declaration with his protection visa application that [CB 35-43]:
1.From 2000 he worked with a Member of Parliament in Puttalam, (“Mr A”), who was a member of the UNP, and a close family associate, doing most of the office work, sending letters to his constituency, visiting homes, lobbying for votes and arranging meetings for Mr A;
2.In 2001, the applicant ran for the Jakitha Sangwardhena Peramuna Party, an independent party that supported the UNP and canvassed UNP votes;
3.In 2004, the applicant ran for the United Lalith Front which was an independent party that supported the UNP and would tell people to vote for the UNP;
4.From 2001 to before 2004, the applicant received some threatening phone calls from the PA who said that when they were in power they would kill him;
5.After the loss of the election to the PA on 2 April 2004, about 30 PA members who came to the office shouting that they would kill the supporters of the UNP attacked the UNP office. The applicant and six others managed to escape before the attackers got out of their car and they hid in the jungle that day and that night. They applicant then fled to Colombo with Mr A;
6.Whilst in Colombo, the applicant received threatening phone calls stating that they would kill him if he stayed in Sri Lanka;
7.One and a half years later, the applicant was forced to return to the UNP offices to collect some papers. The applicant was recognised by a gang who fled when they saw a police jeep. The applicant lodged a statement to the police but the complaint was not followed up;
8.The applicant’s district was the hardest hit by the PA attacks;
9.Since arriving in Australia, the applicant’s mother told him that she was visited late one night by some men who threatened her and told her that he would be killed if he returned to Sri Lanka;
10.The applicant believes that there is a private contract out for his murder and believes that the police or the government will not protect him because he is a UNP member.
15.The applicant claimed in his statutory declaration dated 14 February 2006 to the Tribunal that [CB 201-207]:
(a)During the election of 2001 and continuing throughout 2002 and 2003, the applicant received occasional phone calls of a threatening nature. He received about one or two calls per month;
(b)In March 2004 leading up to the election in April 2004, the calls increased to every week;
(c)The applicant received many threatening calls directly following the April 2004 election when the UNP test;
(d)During the election period in 2004, the applicant was told that his name had been handed down to the underworld gang or contract killers;
(e)The UNP were in power prior to the 2004 election so the applicant wanted to stay in Sri Lanka for them in the 2004 election, he thought he was safe because they were in power and although there were many calls, nothing ever became of them and he did not take them seriously. The applicant only took the threats seriously after the UNP building was damaged in the election;
(f)After the 2004 election, the applicant stayed in Colombo with Mr A. Every week he received threatening phone calls on his mobile;
(g)Immediately after the April 2004 election, the applicant’s mother made a statement to the police about 50 people who attacked her house;
(h)The applicant went to Japan in mid 2002 for just under one month and then again in August to October 2004. In 2002, the applicant did not have any serious problems and in 2004 he did not consider seeking asylum until after the trip when the applicant went to the UNP office to collect some documents on 18 August 2005 were the applicant was threatened and told to leave Sri Lanka.”
The Tribunal decision
In its decision the Tribunal did not accept "that the Applicant would face a real chance of serious harm amounting to persecution because of his political opinion or his imputed political opinion." It therefore found that the Applicant did not "face a real chance of persecution either because of his political opinion or for any other Convention reason now or in the reasonably foreseeable future."
For convenience I adopt as an accurate summary the relevant findings of the Tribunal set out by the First Respondent in written contentions as follows:-
(a)It accepted that the applicant was involved in politics in support of the local UNP candidate, Mr A, that he was a family friend that that the applicant’s family were known UNP supports [CB 250];
(b)It accepted that the applicant ran as a candidate in the 2001 elections for the Jathika Sangwardhena Peramuna Party and for the United Lalith Front in the 2004 elections [CB 250];
(c)It found that the applicant was an active supporter of the local UNP candidate and a member of the UNP [CB 250];
(d)It accepted that by supporting the UNP candidate, the applicant would have been subjected to harassment by members of the opposition parties including that between 2001 and 2004, the applicant would have received threatening phone calls saying that if there were in power they would kill him [CB 250];
(e)The Tribunal did not accept that the harassment and phone calls amounted to persecution. The Tribunal also relied upon the applicant’s own evidence that “there were many calls and nothing ever came of them at that stage so I did not take them seriously” [CB 250];
(f)It accepted that Mr A’s UNP office was attacked by supporters and/or members of opposition parties on the evening of the 2004 election as this type of event was consistent with country information. However, the Tribunal found that the attack did not constitute persecution against the applicant because the Tribunal noted that the applicant was not surprised by the attack, he was one of a large group who escaped through the jungle to the safety of Mr A’s home, the applicant was not harmed in any way, there was no independent evidence to support the applicant’s claim that these people were searching for all of them to kill them because they were working for the UNP, and the applicant’s own evidence was that this type of conduct was very common after an election because of the animosity between the parties [CB 251];
(g)It accepted that the applicant fled to Mr A’s house with other UNP supporters and stayed there for two days before proceeding to Colombo with Mr A [CB 251];
(h)It accepted that the applicant may have received some threatening phone calls during his time in Colombo, while taking into account the applicant’s own actions in failing to seek protection at the earliest opportunity in Japan in August to October 2004, and his comments to the Tribunal that he thought things would settle down after some time and that would live peacefully [CB 251];
(i)It did not accept that the phone calls, threats to follow him, an occasion when he may have been followed, or some abuse shouted at his mother’s home, either individually or cumulatively amounted to serious harm within the meaning of the Convention [CB 251];
(j)It accepted that some incident may have taken place when a car the applicant was travelling in was either stopped, or some abuse was directed at the occupants of the car. However, this was not a serious or major incident. There was no evidence that the applicant was specifically targeted. The applicant’s evidence about the incident lacked detail. The applicant had not been personally recognised or single out, and it was likely that Mr A was the intended recipient of the abuse as the applicant was a passenger in Mr A’s private vehicle. Even if the Tribunal was wrong on this point, the police came to the applicant’s rescue and told the applicant to lodge a report [CB 252];
(k)It did not accept that since the PA came to power that the police had shown little interest in investigating attacks made on UNP members, or that this was because the Party that is in power controls the police [CB 253];
(l)It found that given that the incident subsequent to the applicant’s arrival in Australia – when his mother heard guns shots being fired into the air hear her home – occurred immediately after the presidential election, and represented a continuation of the unrest and general violence which surrounds Sri Lanka in election times, but did not amount to an incident of serious harm for the applicant [CB 253];
(m)It accepted that there was a lot of election violence in the applicant’s electorate but election violence had no bearing on his claims [CB 251];
(n)It did not accept that there was a private contract out for the applicant’s murder and did not accept that the police or government would not protect him because he is a UNP member [CB 253].
The amended application
In the Applicant's Amended Application the Applicant has provided particulars subjoined to two grounds which assert that the decision was made without jurisdiction or affected by an error of jurisdiction, and that being affected by a jurisdictional error is not a decision to which s.474 of the Act applies.
The particulars subjoined to the grounds are as follows:-
(a)The Tribunal erred in treating the harm and mistreatment suffered by the Applicant as not coming within the ambit of section 91R of the Act.
(b)The Tribunal did not discuss how the degree of “state protection” available in Sri Lanka could make fear of persecution at the hands of the PA members/supporters an unfounded fear.
(c)The consequential determination by the Tribunal that it was not satisfied that the appellant was a person who met the prescribed criterion of s 36(2) of the Act depended upon the reasonableness of the process followed to arrive at that decision and the tribunal was unreasonable in the process it followed.
(d)The decision of the Tribunal is to be based upon the formation of the state of satisfaction required by s.65 of the Act. That state of satisfaction, or of non-satisfaction, however, must be formed reasonably upon the material before the Tribunal. We submit the tribunal has erred in this regard.
(e)The obligation upon the Tribunal to conduct a fair hearing is confirmed by the terms of s.420 of the Act which requires the Tribunal to ensure that the process of review is fair and just and states that the Tribunal must act according to substantial justice and the merits of the case.
(f)The Tribunal has not referred to the various documents relied upon by the applicant in support of his claims. The tribunal, however, has made no finding about the documents in its reasons and it is to be assumed that the Tribunal has treated these documents as not authentic or not carrying sufficient weight.
(g)The tribunal has not properly conducted its review under s.414 – 415. The role of the Tribunal in conducting a review under s.414 & 415 of the Act was to assess whether, if returned to Sri Lanka, the appellant would have a well-founded fear of persecution for reason of political opinion.
For convenience I accept that it is appropriate to refer to the grounds as follows:-
(a)Misconstruction of s.91R
(b)Failure to consider state protection
(c) & (d) Unreasonableness/No evidence
(e) & (f) Breach of procedural fairness
(g)Failure to review.
Misconstruction of s.91R
Applicant's submissions
The Applicant referred to s.91R which provides:
“(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b)the persecution involves serious harm to the person; and
(c)the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill‑treatment of the person;
(d)significant economic hardship that threatens the person's capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”
It was submitted the Tribunal had erred when it regarded material provided by the Applicant as not coming within the ambit of s.91R of the Act. It was noted the Applicant's claim was that he feared persecution for reason of his political opinion imputed to him by the PA. If those claims were accepted then it was argued it would follow that the reason for the persecution that had occurred and may occur in the future would be political opinion imputed to the Applicant by his persecutors.
Reference was made to the object of PA to retain or gain control of the government of Sri Lanka, and to further that object by instilling fear amongst UNP members and supporters. It was claimed the Applicant led events described by the Applicant and attributed to the PA would be consistent with what is described as the known manner of operation of both the PA and UNP.
The Applicant may be seen by the PA to be acting pursuant to political opinion and to be a threat to the PA's political objective. It is the perception of the persecutor, which it is claimed is relevant (see Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 45‑47). It was argued that it would be an erroneous approach to treat events of persecution described by the Applicant claimed to have been conduct carried out by or on behalf of the PA as criminal acts by thugs or individuals without regard to political considerations or motives of the PA or because the evidence is only speculative or limited (see Minister for Immigration Multicultural and Indigenous Affairs v Singh (2002) 209 CLR 523).
The claims of the Applicant it was argued were capable of demonstrating a persecution fear by the Applicant in the future if he returned to Sri Lanka was persecution for reason of perceived political opinion.
First Respondent's submissions
It was submitted that on a fair reading of the Tribunal's decision it has considered whether the Applicant would come to harm upon his return, and the Tribunal's decision was open to it on the evidence before it. The Tribunal's decision as it was argued by the First Respondent squarely and properly addressed the Applicant's claims.
It was submitted the Tribunal had correctly identified the issue before it was whether the criterion specified in s.36(2) of the Act was satisfied. It otherwise correctly identified that its satisfaction depended upon whether the Applicant satisfied that he was a refugee as defined in Article 1A(2) of the Convention. Relevant case law was referred to by the Tribunal and it was submitted that there is no basis for finding the Tribunal had constructively failed to exercise jurisdiction or for concluding that the Tribunal erred in applying the "Chan test" (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 378).
It was submitted that there was nothing to suggest in the Tribunal's decision that it wrongly construed the meaning of "persecution". The Tribunal set out its understanding of the meaning of the word including a summary of the meaning of "serious harm" for the purpose of s.91R(2). It otherwise correctly summaries the relevant law and applied the law to the facts it found. It was submitted the Tribunal did not accept there was a real chance that if the Applicant returned to Sri Lanka now or in the foreseeable future, that he would be persecuted for reason of his political opinion, a political opinion imputed to him, or for any other Convention reason. The Tribunal found as a matter of fact that the Applicant was not at risk or persecution as defined in s.91R of the Act. That conclusion was open to the Tribunal according to the First Respondent's submission and it was entitled to find the conduct complained of was not sufficient to amount to persecution for the purposes of s.91R of the Act.
During the course of submissions, the First Respondent referred to a number of authorities concerning the question of whether particular conduct amounts to serious harm, being a factual issue over which the Tribunal is the final arbiter (see Prahastonr v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260-268, 271). It was submitted that in this case the Applicant impermissibly is seeking to review the merits of the Tribunal's finding. The findings by the Tribunal as to whether harm is sufficiently serious to amount to persecution is one of fact and degree and not subject to judicial review (see Arumugam v Minister for Immigration and Multicultural Affairs (1999) FCA 251 [37] (on appeal 1999) FCA 1285).
Reasoning
On a proper reading of the Tribunal's decision in my view it has properly considered the claim made by the Applicant, the details of which are set out earlier in this judgment.
I can see no error of law in the manner in which the Tribunal approached its task and in particular no error in the manner in which it interpreted and applied s.91R of the Act. The Tribunal has correctly referred to the principles known as the "Chan test" and has then proceeded to clearly set out its understanding of the meaning of the word "persecution". I note in particular the Tribunal decision at Court Book p.227 where it sets out a number of elements to the Convention definition of refugee. It correctly notes that s.91R qualifies some aspects of Article 1A(2) for the purpose of application of the Act and the regulations to a particular person.
It otherwise deals accurately with the meaning of "serious harm" for the purpose of s.91R(2). In my view this particular relied upon by the Applicant is misconceived. I accept as submitted by the First Respondent that effectively a challenge is made to the reasoning and findings of fact of the Tribunal which cannot be challenged on the basis of any alleged misinterpretation of s.91R of the Act. The findings were, as submitted by the First Respondent, reasonably open to the Tribunal and the court is not permitted to undertake a review of the merits when considering this application. It follows that this particular cannot be sustained.
Failure to consider state protection
Applicant's submissions
The Applicant submitted that the conclusion that state protection would be available in Sri Lanka by the Tribunal was opposed to the Tribunal's other finding that it accepted the Applicant had been threatened. It was noted the death threats and harassment and a claim of being placed in fear were due to political activities. Reference was made to country information cited by the Tribunal revealing incidents of violence, deaths, death threats and other serious matters. It was noted the Tribunal in its decision stated that, "in other words the Sri Lankan authorities do not perpetuate, condone or fail to control the harm he fears."
It was submitted there was no basis for coming to the conclusion concerning state protection. Some reference was made to other country reports not before the Tribunal that should have been taken into account to assist the Tribunal where it came to a conclusion that "and even if true of some individual police, it does not mean, and the Tribunal does not accept, that the Sri Lankan state condones or is unable to control violence."
First Respondent's submission
It was submitted that the Tribunal's finding in relation to state protection does not disclose an error of law. The question of the weight given to the evidence as I understood the submissions for the First Respondent, does not of itself provide any basis upon which the court should find jurisdictional error. It was specifically submitted that any country information in the possession of the Applicant not produced to the Tribunal cannot now be used to criticise the Tribunal's decision.
It was submitted that there was information before the Tribunal from which it was able to draw conclusions it was not satisfied that the Applicant would not be protected by the police and government.
Reasoning
In my view the manner in which the Tribunal dealt with the question of state protection does not demonstrate any error. The Tribunal was entitled to consider country information and to then further draw a conclusion concerning the availability of state protection. Simply because the Tribunal accepts that an Applicant has been threatened, does not of itself mean regardless of the degree and nature of the threats or whether information exists as to instability throughout the county, that state protection is not available. Nor does it mean that the Tribunal is not entitled as a matter of fact to draw a conclusion based on county information that Sri Lanka does "have government policies against, in laws and law enforcement institutions, to address political violence and does control it to a degree consistent with international standards."
The Tribunal does go on to say, "Even if some incidents are unable to be prevented." (Court Book p.253) It was then open to the Tribunal to reach a conclusion that the Applicant in the past and the future would be afforded state protection and further make a finding that the "Sri Lankan authorities do no perpetuate, condone or fail to control the harm he fears" (Court Book p.253). The Tribunal reached that decision in a manner free of error after having referred to relevant county information. It should not be criticised for failing to refer to other country information now sought to be relied upon by the Applicant, which the Applicant could have raised at the Tribunal hearing.
I can see no error arising out of this particular.
Unreasonableness/No evidence
Applicant’s submissions
As I understood the Applicant’s submissions, it was argued that the Tribunal should carry out its decision making function rationally and reasonably and not arbitrarily. It must be based upon the formation of the state of satisfaction required by s.65 of the Act. That state of satisfaction or of non-satisfaction it was argued must be formed reasonably upon the material before the Tribunal. Reference was made to the decision of the Court in Canada (Director of Investigation and Research) v Southam Inc (1997) 1 SCR 748 at [56] referred to by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145] as follows:
“An unreasonable decision is one that, in the main, is not supported by any reasons that can sand up to a somewhat probing examination. Accordingly, the Court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.”
It was argued the foundation of the authorities is a requirement that the Tribunal act judicially by affording procedural fairness (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366-367).
Whilst it was noted the Tribunal in its reasoning accepted the Applicant had been harassed, abused and threatened with death in connection with political activities, the Tribunal concluded the harm experienced by UNP members/supporters did not constitute persecution. The consequential determination by the Tribunal that it was not satisfied the appellant was a person who met the prescribed criterion of s.36(2) of the Act it was argued depended upon the reasonableness of the process followed to arrive at the decision.
Reliance is placed on two incidents which the Tribunal accepted but which it did not place great weight upon. The first was an incident described by the Applicant as being the event which led him to fleeing Sri Lanka. The Tribunal found that was not a serious or major incident as otherwise the Applicant would have remembered certain facts as to what time it happened, how many people surrounded the car, which seat he was occupying and whether other occupants of the car were forced out. The second was the attack on the office of the Member of Parliament, Mr A. On that occasion the Tribunal held the Applicant was not harmed and the attack was not directed against the Applicant but against the Member of Parliament. It was submitted that to reject the seriousness of the first incident because the Applicant cannot provide details was unfair. It was argued the Applicant could have given the Tribunal a false answer but chose not to do so. His credibility should not therefore be questioned because of that inability to recall detail. In relation to the second incident it was submitted the Tribunal was speculative and by engaging in a speculation as to what a more likely course of events may have been it had no basis upon which it could say the attack was on the Member of Parliament’s office and not directed to the Applicant.
This was not a case it was argued where the Tribunal, on proper grounds, had already determined by the substantive claims of the Applicant were dishonestly made and accordingly “any documentary material such as the reports that purported to corroborate those claims necessarily bore the same stamp”.
First Respondent’s submissions
It was submitted that a “no evidence” ground can only amount to jurisdictional error where the fact for which there is no evidence is a jurisdictional fact “that is a relevant fact being the attainment of satisfaction for the purpose of s.65 of the Act” (see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402).
Reference was made to a number of well known authorities concerning this ground. It was submitted, however that the obstacle confronting the ground of appeal was that the Tribunal is the finder of fact. Any errors in fact finding would not constitute an error of law let alone a jurisdictional error (see Attorney-General (NSW) v Quin (1990) 170 CLR 1 per Brennan J at 35-36; Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]).
In the present case it was submitted the Tribunal’s findings were not illogical nor based on no evidence and it cannot be claimed that the Tribunal had failed to properly exercise its jurisdiction. It relied upon Country Information when it concluded that Sri Lanka had government policies against and law enforcement agencies to address political violence. It was argued the Tribunal was entitled to draw that conclusion from the Country Information before it.
In the alternative it was further submitted that s.422B of the Act provides that s.424A is an exhaustive statement of the Tribunal’s obligation to provide information to the Applicant. Any argument therefore was a breach of procedural fairness in failing to give the applicant the opportunity to comment on the material on which the examination by the Tribunal is made cannot be sustained.
Reasoning
In my view this ground should fail.
I accept that s.422B has application to the present case and that this has been confirmed by the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62.
Whilst it is noted that some criticism was made of the Tribunal’s reliance upon Country Information and indeed at one point suggested in the submissions of the Tribunal ought to have considered other Country Information that does not of itself provide a basis upon which the Court is able to conclude that there has been jurisdictional error.
I accept as submitted by the First Respondent that the Tribunal, as part of its fact finding process, has simply made findings in a manner free of jurisdictional error and has not denied the Applicant procedural fairness. In my view this ground effectively seeks to revisit the evidence and/or assert that other evidence should have been given further consideration by the Tribunal. That in my view is insufficient to support this ground and accordingly the ground should fail.
Breach of procedural fairness
As the Applicant sought to rely upon the Tribunal’s failure to refer to other Country Information more favourable to the Applicant’s case and otherwise criticised the findings of fact. It is clear to me that in the present case for the reasons given in relation to the previous ground, this ground should fail. In addition, in this ground, I accept that even if I were to be satisfied that the Tribunal had made an incorrect or illogical inference from primary facts, that will not necessarily constitute proper grounds for finding jurisdictional error as it may well only constitute a step towards the ultimate determination.
In this case, however, it is clear to me that there has been a simple assessment of the evidence by the Tribunal in a manner free of jurisdictional error and resulting in findings of fact which were open to the Tribunal. I accept, as submitted in relation to this ground, that effectively the Applicant seeks to re-agitate the merits of the case.
I otherwise accept that there has been no breach of s.424A of the Act which does not apply to information not specifically about the Applicant. The Tribunal clearly took into account the claims made by the Applicant. I further accept that when dealing with documents, the Tribunal did not make any specific finding concerning the genuineness of those documents and I am not satisfied that the documentary material and the manner in which it was dealt with by the Tribunal provided anything other than a background to the claims made by the Applicant. The Tribunal did not conclude that there was any suggestion of fraud in the manner in which it dealt with the documents and hence any complaint which was raised by the Applicant in relation to this issue cannot be sustained.
The Tribunal was not required to consider all of the material provided by the Applicant in support of the claim. It proceeded as submitted by the First Respondent to consider and make findings on the Applicant’s claims as it was obliged to do in a manner free of jurisdictional error.
Failure to review
As with the previous ground it is not necessary to set out in detail the submissions by the parties. It will be clear from the discussion in relation to other grounds that I am satisfied that the Tribunal has not failed to review the application. The Applicant was given an opportunity to attend a hearing and indeed did so and provided evidence. I accept, as submitted by the First Respondent, that there is nothing in the material before this Court to indicate the Tribunal failed to afford the Applicant procedural fairness in relation to the making of its decision. Accordingly, this ground should fail.
Conclusion
It follows for the reasons given that the application should be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 May 2007
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