MZXKI v Minister for Immigration
[2007] FMCA 464
•5 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXKI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 464 |
| MIGRATION – Protection visa – Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958, ss.422B, 424 |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 367 Devries v Australian National Railways Commission (1993) 177 CLR 472 |
| First Applicant: | MZXKI |
| Second Applicant: | MZXKJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 776 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 7 March 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2007 |
REPRESENTATION
| First Applicant: | In person |
| Second Applicant: | In person |
| Counsel for the First Respondent: | Ms E Latif |
| 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 776 of 2006
| MZXKI |
First Applicant
| MZXKJ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application the Applicants seek judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 2 May 2006. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants protection visas.
Background
The Applicants are a married couple, the First Applicant a 28-year-old citizen of Sri Lanka and the Second Applicant a 25-year-old citizen of Sri Lanka. The Applicants are husband and wife who arrived in Australia on 10 April 2005 on a tourist (short stay) subclass 676 visa valid for one month. On 9 May 2005 the Applicants made an application to the First Respondent for protection visas. The Second Applicant lodged her own claim for protection.
On 22 July 2005 a delegate of the First Respondent refused to grant the visas. On 19 August 2005 the Applicants applied for review of the delegate's decision. Although the Applicants had separate claims they gave oral evidence to a hearing conducted by the Tribunal on 19 December 2006. In addition to oral evidence, the Applicants relied upon a number of documents set out in detail in the Tribunal's decision under the heading "Claims and Evidence".
The applicants’ claims
In the First Respondent's Contentions of Fact and Law, the claims of the Applicants have been accurately referred to as follows:-
“The first applicant’s claims
The First Applicant claimed to be of Singhalese ethnicity, a Buddhist and a supporter of the United National Party (the UNP). He claimed to have a well founded fear of persecution by reason of his political opinion, in particular he claimed:
·He left Sri Lanka because his political opponents threatened him and forced to close his business (Court Book p.27).
·He feared he could be harmed or mistreated by the police or armed forces at the instigation of his political opponents because he was a supporter of the UNP (Court Book p. 29).
·He claimed his mother had been visited by his opponents during his absence (Court Book p.32)
·In his oral evidence before the Tribunal the Applicant claimed that his support for the UNP was a personal philosophy and family tradition for him. He further claimed that he had two businesses including an importing/exporting business and that goods dispatched to his business were not subsequently delivered and he believed the goods were held up for political reasons. He further claimed concurrently with the Second Applicant that his "problems" were caused by his wife's activities and arose before he met her (Court Book pp.131-132).
·Before the Tribunal he claimed that he supported the UNP by the provision of money and manpower.
The second applicant's claims
The Second Applicant claimed to be of Singhalese ethnicity, a Buddhist and a supporter of the UNP. In particular she claimed:-
·She left Sri Lanka because her political opponents threatened to abuse her (Court Book p.41).
·Her father left Sri Lanka because of political pressure (Court Book p.41).
·A Peoples Alliance (PA) politician, his sons and political supporters might harm or mistreat her if she returned to Sri Lanka (Court Book p.43).
·She had been a secretary of the youth league of a regional branch of the UNP (Court Book p.43).
·Her mother had asked her not to go back to Sri Lanka and planned to join her father abroad (Court Book p.46).
·The Second Applicant produced a series of documents in support of her claims at the Tribunal hearing. Those documents were set out in detail in the Tribunal's decision. In addition, the Second Applicant gave oral evidence at the hearing where the Second Applicant claimed:
·Her uncle had been killed by the Janatha Vimukthi Peramuna (the JVP).
·The father was involved with the UNP and spent several years in Saudi Arabia.
·On 3 June 2004, political opponents attempted to kidnap her and when she tried to report the incident to the police they refused to take the report.
·Political opponents threatened her mother and called the principal of the school she taught at demanding that her employment be terminated and she ultimately had to leave her job.
·Her political opponents interfered in her relationship with the First Applicant.”
The Tribunal decision
Before making its decision the Tribunal forwarded a letter dated 20 December 2005 to both Applicants inviting them to comment on information. In relation to the First Applicant, the Tribunal noted that at the hearing he advanced "claims to the Tribunal for the first time, including it was your wife's activities that made you fear persecution rather than your own political affiliations."
In relation to the Second Applicant the Tribunal referred to a claimed incident on 3 July 2004 and asked:
“Could you inform the Tribunal in writing as to the reason you had not mentioned this incident before, given that it appears to be the central incident in your claims? Could you please also comment on other issues you had not mentioned before such as your apparent living in different places since you marriage, the incident when your dog was shot, the posting of information ridiculing your character and its consequences on the date of your marriage.”
(Court Book p.112)
The Tribunal otherwise referred to an extract from an information book of a police station with an English translation. The Tribunal stated:
“At the hearing you stated that the translation had errors in it and it indicated that people have been looking for you after you left Sri Lanka for Australia. Could you please confirm that your mother made this report to the police on 8 December 2005. If so why was the report made at this time (which was also the time after you had already received an invitation to a hearing from the Tribunal) and not at a time when the alleged threats were made? The Tribunal will obtain another translation of this report.”
(Court Book p.112)
According to a memorandum dated 22 December 2005 (Court Book p.119) the Second Applicant purportedly contacted the Tribunal office and made reference to the letter received from the Tribunal and indicated that "she would endeavour to respond to this letter." No further comments were made and as indicated earlier in the judgment the Tribunal proceeded to make its decision dated 2 May 2006. That is almost five months after the invitation to comment on the information set out earlier in this judgment.
In its decision the Tribunal accepted that the Applicants were both involved with the UNP and that the Second Applicant took part in helping the party in its election campaigns. It further accepted that the Second Applicant's father was also involved in the UNP but did not accept that he had ongoing political problems. It noted in its findings that the "essence of the applicants’ claims has become that they would be persecuted on return mainly because of applicant 2’s political activity and because of the harm done to them prior to their departure from Sri Lanka" (Court Book page 134). It is significant to note the Tribunal then relevantly states,
“At the initial stage of the process they provided general claims being threatened with abuse by political opponents. In the iteration of their claims to the Tribunal they provided details of incidents which allegedly happened to them and which are at the root of their fear. These included death threats.
The Tribunal notes that the fact that these details were not provided earlier raises the issue of the veracity of these incidents and lead the Tribunal to conclude that the applicants have introduced these occurrences in order to bolster their claims, given the findings of the delegate in July 2005. The reason which was provided at the hearing for the late presentation of these claims was that they were told by a lawyer not to give detailed information at that (earlier) stage. The applicants are well-educated persons and at the hearing applicant 2 stated that she cam to Australia to seek protection under the UN Convention. The Tribunal is not satisfied under such circumstances the applicants would not reveal the very incidents which represent instances of harm and which form the alleged basis of their fear at the earliest opportunity. It is also inherently unlikely that an advisor such as they had engaged to help them with the Protection Visa application would have provided the kind of advice they now adduce as the reason for not making the claims earlier. The Tribunal requested a response in writing after the hearing to this and other issues but no response has been received. The Tribunal is therefore not satisfied that applicant 1 was forced to close his business because of his political activities and that his goods were stopped in customs by his political opponents (he did not send to the Tribunal the corroborative documents which he said he had and as was agreed at the hearing), and it appears that he was actually effecting a sale of one of his businesses.
Because of the lateness of the claims, the Tribunal is not satisfied that there was an attempt to kidnap applicant 2, nor that she received death threats or that there were attempts to rape her. The Tribunal does not accept that this applicant was moving from place to place in order to avoid problems. This applicant has provided the Tribunal with the documents listed above. The Tribunal has a number of concerns about these documents, in particular as to their probative value.”
(Court Book p.134)
The Tribunal then referred to the chronology of events and the dates of the documents which appear to postdate the decision of the delegate of the First Respondent. It criticised some of the letters and noted that many of the letters "utilise the same phrases to indicate that the Applicant was politically active and that she received threats" (Court Book p.135). It found that, "the remaining content of these letters is either irrelevant or self-serving and does not give weight to the attestations regarding the Applicant having received threats or leaving Sri Lanka because of them" (Court Book p.135).
Reference was made to the Second Applicant's claim that her mother was threatened and that the Second Applicant herself developed a headache and was hospitalised for three days as a result of aspersions being cast on her character to her mother-in-law and that the thugs also put up posters which ridiculed her. The Tribunal then states:
“The Tribunal again notes that these were late claims and that no further explanation has been provided by the applicant regarding these claims in response to the s424A request. The Tribunal finds these claims also to be embellishments and does not accept them.”
(Court Book p.136)
It then dealt with the claims concerning an incident that occurred in July 2004 and the impact on the Second Applicant's employment in the following paragraphs:
“The Tribunal’s findings above relate to considerations regarding the lateness of the claims by both applicants; however the details of the claims themselves provide sufficient reasons for the Tribunal not to accept them. For example, applicant 1’s claims that he was forced to close his business is not borne out by the evidence given at hearing: the evidence seems to indicate that he was (is) in the process of selling one of his businesses and he did not provide the evidence which he stated he had about the goods being stopped at Customs. Applicant 2’s claims of an attempted kidnap and attempted rapes are also not supported by the evidence. Applicant 2 stated that 15 people surrounded her and her driver in July 2004 but she managed to escape to a house 300 to 400 m away. Even granted that the applicant had taken some courses in self-defence as she indicated, this escape from 15 thugs with batons and guns to a house 300 to 400 m away with no indication that anyone of these people followed her or that any physical harm was done to her on that occasion defies common sense, especially when the applicant herself has declared that the thugs in question were basically hardened criminals at the service of a PA politician.
She claims that between the time of the above incident and the time she left for Australia, her dog was shot (on 9 July 2004) when she was staying at the Minister’s house (this was the day before the Provincial Council elections). She also claims that she was asked to choose between her teaching job and her political activities by her school principal. The Tribunal accepts both these occurrences, however in relation to the first, the applicant has provided the Tribunal with few details and only her contention that this was meant to be a signal for her by her political opponents. There is no indication that this modus operandi is consistent with the activities by the thugs which she described, nor any particular indication as to the timing of this event which can be fairly connected with a political motive. In terms of her being asked to choose between her politics and her teaching job, it is unremarkable to the Tribunal that a principal of a school would need to make such judgments in relation to the teaching staff of the school and other activities which they might be carrying out and which might take time away from their teaching. The applicant contended that it was outside pressure from political opponents on the principal which lead to the principal asking her that question. The Tribunal does not accept this explanation as the applicant stated that these alleged political opponents asked the principal to sack her. There is no indication that she was sacked.
The Tribunal has considered, given the claims made by the applicant regarding the familial tradition of support for the UNP and the claim that applicant 2’s uncle was killed by the JVP, whether there is a real chance that the applicant would be persecuted for reasons of membership of a particular social group that being their family. The Tribunal accepts that the family can constitute a particular social group in terms of the Convention, however, the evidence presented does not lend itself to regarding both applicants’ claims as part of a long-standing animosity towards both families by the parties opposing the UNP. The claims about applicant 2’s father and his sojourn in the Middle East have already been dealt with above; the evidence about this applicant’s uncle is at best vague and there was no clear nexus in the evidence between this man’s murder and applicant 2 or the present circumstance win which applicant 2 claims to have found herself. In relation to applicant 1, the family affiliation with the UNP was not claimed to having been, in the past, any source of harm or indeed problems for this applicant. Under the circumstances the Tribunal finds that there is not a real chance that the applicants face persecution for reason of their membership of a particular social group namely their family, taken as either the wider family including their in-laws or each of their families.” (sic)
(Court Book pp.136-137)
The issues
The Applicants who are self represented relied upon an Amended Application filed 28 December 2005. The grounds of the application set out in the Amended Application are as follows:
“1.The Tribunal has not made a decision about the persecution of the applicants suffered due to the convention reason of their political opinion and thus has not performed its task under the Migration Act.
2.The Tribunal has applied the wrong test in giving no weight to the applicant-wife’s evidence regarding the attempts of her kidnap and rape.
3.The Tribunal’s finding that the applicant-wife was not terminated from her teaching job due to her political opinion was not supported by evidence.
4.The Tribunal has failed to explore and determine whether the applicant-wife constitutes a particular social group in term of the convention reasons thus breached it task of assessing this particular convention ground. Its purported conclusion that there was no clear nexus between her and the murder of her uncle was a wrong interpretation/test contrary to the current precedents set by the Australian Courts.
5.The tribunal has not assessed the integer of the applicant’s claims, thus failed into jurisdictional error.” (sic)
In support of the grounds the Applicants relied upon contentions of fact and law filed on 18 December 2006.
Reference was made in the contentions to the adverse Tribunal findings and it was claimed the Tribunal did not realise that its hearing was a de novo hearing and that it made unrealistic emphasis on lateness of the claim without realising the Applicants were unrepresented throughout the process of their claims.
Further, it was argued that the Tribunal did not give a reason for its failure to accept the explanation given by the Second Applicant that the principal of her school was pressured by political opponents to sack her. Criticism was made of the Tribunal's assessment of the Second Applicant regarding her family's support of the UNP and claims that her uncle was killed by the JVP and that she could therefore be regarded as a member of a family which constitute a particular social group. The criticism of the Tribunal's finding was that it assessed that there was no clear nexus between the Second Applicant and the murder of her uncle without acknowledging that the Second Applicant was part of a family, namely, the niece of the deceased person and a member of a social group, namely that family.
It was argued the failure to consider an integer of the claim arose from the Tribunal's failure to refer to country information and consider the Applicant's claims against the information.
First respondent's submissions
The First Respondent submitted that the Tribunal had considered the Applicants’ claims and their essential integers. The extracts from the Tribunal's decision set out earlier in this judgment when read as a whole reveal that the Tribunal was simply not persuaded that the claims by the Applicants had any nexus to the Applicants’ political opinions. The Tribunal was not persuaded the incidents occurred as claimed at all and that this was based upon the Applicants’ credibility. That finding was free of any jurisdictional error according to the First Respondent's submissions.
The Tribunal, it was submitted, was not obliged to refer to country information in assessing the Applicant's claims for protection. See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
Any finding by the Tribunal which relied upon what may be described as the late presentation of the Applicants’ claims it was submitted were findings open to the Tribunal and were findings of fact not amenable to judicial review.
Further it was indicated that the Applicants otherwise seek to challenge the weight given by the Tribunal to certain facts, which again it was argued is impermissible.
It was submitted that the findings in relation to credibility are findings within the Tribunal's exclusive jurisdictional (see Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 367 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479).
It was further submitted that the Tribunal considered the Second Applicant's claim that her employment was terminated due to her political opinion. The Tribunal it was submitted rejected that claim. It was submitted there was no breach of s.424A of the Migration Act 1958 (the Migration Act) in the manner in which the Tribunal dealt with that claim as it was a claim arising from the Second Applicant's oral evidence before the Tribunal and that accordingly s.424A(3)(b) applies.
It was submitted that the Tribunal gave reasons for failing to be persuaded that the Second Applicant's termination of employment had a nexus with her political opinion.
Reasoning
It should be noted at the outset that both Applicants were self represented though assisted by an interpreter. In addition to the matters set out earlier it is clear that both Applicants expressed dissatisfaction with the Tribunal's decision. At one point the Second Applicant indicated that she felt that they were not given a proper hearing and referred to the demeanour of the Tribunal which led her to perceive that the Tribunal was not giving serious consideration to the claim. The First Applicant shared the concern.
To the extent that that concern may constitute an alleged ground of apprehended bias, I am satisfied that there is insufficient material before the Court, having regard to the relevant authorities, for there to be any finding of apprehended bias. It is clear from the Tribunal's detailed decision and also its invitation to the Applicants to consider information which might be the reason or part of the reason for the Tribunal affirming the delegate's decision. The Tribunal then delayed making its decision for a number of months. Its decision when read properly does not reveal or disclose any suggestion in my view that it failed to approach its task in a proper manner. I am not satisfied that there is any or any sufficient basis upon which the Court is able to conclude that this Tribunal was biased.
In my view a proper reading of the Tribunal's decision and in particular the extracts which I have deliberately set out in detail, demonstrate that the Tribunal has addressed the claims made by the Applicants. It has then drawn conclusions reasonably open to it on the facts albeit conclusions adverse to the Applicants. It has done so in a manner free of jurisdictional error.
It specifically considered and dealt with the claims but ultimately as a matter of fact was not persuaded there was a sufficient connection between the Applicants’ political opinions and the incidents claimed. It also analysed in some detail the claims and clearly developed reasoning reasonably open to it. In particular the extract from page 136 of the Court Book referred to in paragraph 14 of this judgment demonstrates the Tribunal analysed in appropriate detail the July 2004 incidents. That analysis was an analysis reasonably open to the Tribunal and its conclusions in relation to that and other matters to the extent that they were adverse conclusions of credibility and were matters for the Tribunal to determine. In relation to the credibility findings I accept the submissions for and on behalf of the First Respondent that those findings are findings of fact which in this case were reasonably open to the Tribunal and do not demonstrate jurisdictional error.
I cannot see any evidence that the Tribunal has otherwise breached any statutory provision and specifically I am not satisfied there has been a breach of s.424A of the Migration Act. It is clear that the Tribunal dealt with information provided in oral evidence by the Second Applicant, and as submitted by the First Respondent s.424A(3)(b) of the Migration Act applies. It is not necessary for the Court to further consider other submissions in relation to this issue and specifically not necessary for the Court to consider the application of s.422B of the Migration Act. In any event on my reading of the Tribunal's decision I am not satisfied that even if the Court was to consider common law procedural fairness in this context that there has not been any denial of procedural fairness to the Applicants.
The claims by the Applicants in this instance are clearly claims which have been recited in some detail by the Tribunal and dealt with in a manner free of jurisdictional error. The Tribunal has dealt with the integers of the claims as presented and I am satisfied has reached a decision free of error.
It follows therefore for the reasons given that the application should be dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 5 April 2007
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