MZXLJ v Minister for Immigration - [2007] FMCA 239

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXLJ v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 239

MIGRATION LAW – Application for judicial review of decision of Refugee Review Tribunal – alleged jurisdictional error – no jurisdictional error established – application dismissed.

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719

Applicant:

MZXLJ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 945 of 2006

Judgment of:

Burchardt FM

Hearing date:

13 February 2007

Date of last submission:

13 February 2007

Delivered at:

Melbourne

Delivered on:

14 March 2007

REPRESENTATION

Counsel for the Applicant:

Mr J.H. Hamilton

Solicitors for the Applicant:

Goz Chambers Lawyers

Counsel for the First Respondent:

Ms S.E. Moore

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The First Respondent’s name be changed to ‘Minister for Immigration & Citizenship’.
The Application filed 24 July 2006 be dismissed.
The Applicant pay the First Respondent’s costs, fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 945 of 2006

MZXLJ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an application filed on 24 July 2006, the Applicant sought judicial review of a decision of the Second Respondent ("the Tribunal") made on 13 June 2006 by which the Tribunal affirmed a decision under review of a delegate of the First Respondent made on 2 April 2004 that the Applicant did not meet the prescribed criteria for the grant of a (class XA) subclass 866 protection visa.
The grounds of the application ran for a number of pages but in the ultimate the issue as pressed before this Court was a narrow one.
The application can only be understood in the context of the history of the matter. (What follows through to paragraph 8 is taken from the First Respondent’s submissions, and is not controversial). The Applicant arrived in Australia on 21 November 1998 on a tourist visa. He is a 37-year-old citizen of Sri Lanka who claims to be of Singhalese ethnicity. It is apparent from the First Respondent's contentions of fact and law which were not put in issue in this regard that the Applicant was granted three further student visas which were valid until 20 July 2003.
On 31 July 2003, the Applicant applied to the First Respondent, then named the Department of Immigration and Multicultural Affairs, for a protection visa. That application was accompanied by a statutory declaration declared by the Applicant in July 2003 (CB 33). It should be noted that before applying for the protection visa the Applicant had returned from Australia to Sri Lanka on two occasions.
A delegate of the First Respondent refused to grant a protection visa on 2 April 2004 and that refusal led to a hearing of the Tribunal on 26 August 2004. On 15 October 2004, the Tribunal handed down a decision (“the first Tribunal decision”) affirming the decision of the delegate. A number of the findings made in that hearing are of present significance and I will return to them in due course.
On 10 November 2004, the Applicant applied to the Federal Magistrates Court for judicial review of the first Tribunal decision. On 28 October 2005, his Honour McInnis FM delivered judgment in which he ordered that the application be dismissed and the Applicant pay the First Respondent's costs.
On 17 November 2005, the Applicant lodged a notice of appeal with the Federal Court of Australia which ultimately led to orders by consent on 16 March 2006 that the orders of McInnis FM be set aside and the matter be remitted to the Tribunal to be determined according to law. The Applicant received his costs of the appeal.
The remitted hearing was heard by the Tribunal on 23 May 2006. The Applicant gave oral evidence at that hearing at which, it is apparent, he was represented by his migration agent. The Tribunal handed down reasons for its decision on 27 June 2006 (CB 108-119). It is that decision that is the subject of the application presently before this Court.
It is quite apparent from the decision of the Tribunal that the case turned in the most marked way upon a fairly defined and confined evidentiary set of issues. These issues concerned when and where the Applicant became involved in politics in Sri Lanka.
Counsel for the Applicant submitted that all country information had been ignored, as was the question as to whether or not the Applicant's involvement with the Political Alliance (“PA”) party might have given rise to a reasonable fear of persecution on the part of the Applicant were he to be returned to Sri Lanka.
Counsel said that there was one issue considered only; namely, the credibility of the Applicant's answers as to when and where he joined the political party. Nothing else was considered. To the extent that

the Tribunal referred (at CB 118 third paragraph) to "given the contradictory nature of the evidence the Applicant gave in relation to his involvement in politics in Sri Lanka", it was submitted that no other matters than the when and where of his commencement of involvement were detailed by the Tribunal. I accept that submission. It is not possible from the Tribunal's reasoning to see any other matters than the when and where issues as having had any effect at all.
The Applicant referred to Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 in this regard. The gravamen of what was submitted on the Applicant's part was that where the Tribunal may base its findings on a factual issue for which there is no foundation, then there may be jurisdictional error. I accept that submission also.
Counsel for the First Respondent not surprisingly took me though the evidence before the Tribunal in some detail. She correctly, in my view, concentrated her case on what were described as the when-started and where-started issues.
The first Tribunal decision was in part extracted in the second Tribunal decision. The Tribunal set out the relevant extracts from the first Tribunal decision (at CB 111 – 113). In the second full paragraph (at CB 112), the following extract was taken from the first Tribunal decision:
“The applicant said that he was a member of the youth branch of the SLFP in his home electorate, as from 1988. The Tribunal put it to the applicant that in his initial claims he had said he had joined the SLFP in 1994.”
The Tribunal (at CB 116) canvassed in some detail what had been put at the earlier hearing. In the third full paragraph (on CB 116), the Tribunal recorded:
“The applicant was told that at his previous Tribunal hearing he had stated that he first joined the SLFP (a constituent party of the PA) in 1988. The applicant agreed that the SLFP existed before the PA was founded but stated that he joined the PA in 1994. The applicant was asked if he had been a member of the SLFP before he joined the PA in 1994. He replied that he liked their opinion. When asked again if he was ever a member of the SLFP, the applicant stated that he was not a member "legally" and that he would talk with people in the SLFP and would change people's minds. He confirmed that he had never paid a membership fee and had never joined the SLFP before it became the PA in 1994.
The applicant was told that at the first Tribunal hearing he had stated that he had been a member of the youth branch of the SLFP from 1988 onwards. He responded that he was a member but had not paid money. He claimed that he had a group that would gather with people and talk. He stated that this group was in Galle. He claimed that his father had been a long-time member of the SLFP. The applicant was asked if he was implying that he joined a group in Galle in 1988. He responded that he joined after he started working in Galle. When told by the tribunal that he had previously stated he had started working in Galle in 1989, the applicant confirmed this was the case.
The applicant was asked if he was now claiming that he first became involved with the SLFP after he arrived in Galle. He confirmed that this was correct. The applicant was told that this claim conflicted with the evidence he had given at the previous tribunal hearing. He stated that he had tried to explain that he had started in 1989. The applicant was told that this conflicted with the statement he had made at the previous hearing where he had clearly stated that he had joined the youth branch of the SLFP in his home town in 1988. He stated that he had tried to explain that he had started political activities after he had started his job in 1989. The applicant was asked to clarify whether he was now claiming that he had started political activities in 1989 in Galle rather than in his home town in 1988. He confirmed that he had commenced political activities in Galle in 1989.
The applicant was asked why he had told the previous tribunal hearing that he had joined the youth branch of the SLFP in 1988 in his home town. He repeated his claim that he had tried to explain that he had started after he had gone to Galle. The applicant was told that the conflict in his evidence between the previous hearing and this hearing caused the tribunal some credibility concerns in relation to his evidence about his involvement in the SLFP. The applicant stated that he did not know what he had said then but he was now confirming that he started political activities after he went to Galle in 1989. The applicant was told that the two directly conflicting versions of these events he had given at the two hearings raised serious concerns about whether he was ever a member of the SLFP or the PA as claimed. He stated that they were both the same political party and that they changed names because the SLFP wanted to go to the election as the PA. When again told that the conflicts raised serious doubts as to whether he was ever involved in the SLFP or the PA as claimed, the applicant chose not to make any response.
When asked if he had anything else he wanted to tell the Tribunal, the applicant stated that he could not remember what he had previously said but what he was now saying was correct.”
I have set out these extracts from the Tribunal's decision because they form the kernel of what led the Tribunal to its ultimate decision. It is plain that the Tribunal's concerns as to the Applicant's credibility were not overcome by his answers. It is true that they reflect differing assertions as to when and where the Applicant became involved in the political process that according to him ultimately led him to flee Sri Lanka in fear of his life. It is not necessary to set out in full the findings and reasons of the Tribunal. The Tribunal relevantly found (towards the bottom of CB 117):
“The applicant gave evidence at two Tribunal hearings and during these hearings he provided vague and contradictory evidence in relation to his political involvement, especially in regards to when he commenced his political involvement in Sri Lanka. At the first Tribunal hearing the applicant stated that he had first joined the youth branch of the SLFP in 1988 in his home town and had later become more active in the activities of the successor party, the PA, after meeting Alahaperuma in 1994 through a mutual friend. At the second Tribunal hearing he claimed that he had become a member of the PA in 1994 and had not been a member of the SLFP before this time. He insisted that he had been a supporter of the SLFP before 1994 but had never formally joined that party. He also insisted that he had never participated in any political activities in his home town and had commenced his interest and activities in politics after he went to Galle in 1989 and became involved in a group of people that would discuss politics and were sympathetic to SLFP and PA policies and ideas.
When asked to explain the contradiction between his claims at the first hearing and the second hearing the applicant claimed that he could not recall making the comments ascribed to him at the first hearing and insisted that he had not joined the SLFP youth branch in his home town in 1988.
Given the contradictory nature of the evidence the applicant gave in relation to his involvement in politics in Sri Lanka and in particular his evidence in relation to when and where he commenced his involvement in the SLPF [sic] and the PA I find that the applicant’s evidence in this regard lacks credibility and that the applicant was not a witness of truth in relation to these claims.
Based on the contradictory nature of this evidence given by the applicant and the lack of credibility of his evidence, I am not satisfied that the applicant was ever a member of the SLFP or the PA as claimed and I am not satisfied that he was ever involved in campaigning for a PA candidate, Dallas Alahaperuma. I therefore find that the applicant was never a member of the SLFP or the PA as claimed, that he was never involved in campaigning for a PA candidate, Dallas Alahaperuma, and that he was never involved in politics in any way in the past in Sri Lanka as claimed. Given these findings I also find that the applicant did not suffer any serious harm as a result of his alleged involvement in politics in Sri Lanka including any claims of verbal threats, death threats, threatening telephone calls to him or his mother or any alleged assaults from political opponents. I also find that he did not stay in hiding on his two return visits to Sri Lanka in order to avoid harm from political opponents as claimed.
Based on all of the above I find that the applicant did not suffer any serious harm for any Convention related reason in the past in Sri Lanka.”
The Tribunal went on to dismiss the Applicant's assertions of possible harm in the event of return to Sri Lanka and concluded that the Applicant did not have a well founded fear of persecution within the meaning of the Convention.
In my opinion it was open to the Tribunal to make the credit findings that it did make of the Applicant. His answers were contradictory, and while minds might legitimately differ as to whether or not contradictory evidence given long after the events was such as to properly attract criticism, it cannot be said that this process of reasoning was not open to the Tribunal. The Tribunal heard the evidence. It put the Applicant on clear notice that it was dissatisfied by his answers and did not accept them.
It should be noted that the Applicant was represented at the second tribunal hearing and no application was made to the Tribunal that it should examine for itself the transcript of the first tribunal hearing with a view to forming a conclusion as to whether or not the Applicant's explanations of his earlier evidence were correct. In these circumstances, in my opinion it was open to the Tribunal, and indeed incumbent upon it, to accept that the record of decision of the first tribunal hearing accurately recorded what it was that the Applicant said. Accordingly, there were undoubtedly inconsistencies in the Applicant's story and they were such as to give a proper basis for the Tribunal to reach the credit findings that it did.
Having said that, the question is whether or not the Tribunal's failure otherwise to address the Applicant's evidence and its failure to consider his alleged fears of persecution upon possible return to Sri Lanka in any way vitiates the Tribunal's decision.
In my opinion this is not a matter that is in any way devoid of doubt. On the one hand it might be felt that even if the discrepancies in the Applicant's evidence at the two tribunal hearings was established, it does not necessarily logically lead to the conclusion that his other elements of political involvement and subsequent resulting concern are fabrications. Nonetheless, on another view it was open to the Tribunal to conclude that a witness who is unable even to tell it when and where the Applicant first became involved in the political processes that have so dominated every aspect of his life in his homeland was such as to make him utterly unbelievable.
Not without misgivings, I consider that this was an error within jurisdiction if it was an error. Minds might legitimately differ as to whether or not a finding on a relatively narrow credit point of this sort could lead to the total destruction of confidence in everything the Applicant said, but in my opinion, in the context of the fact that the findings as to credit were open to the Tribunal, equally it was open to the Tribunal to extrapolate from that a complete lack of belief in the other assertions the Applicant made.
If it was open to the Tribunal, as I find it was, not to believe the Applicant on any aspects of his historical narrative, it was not necessary, self-evidently, for the Tribunal to consider whether or not the Applicant faced a well-founded fear of persecution in the event of return to Sri Lanka as the factual basis that might have given rise to any such fear was expressly disavowed by the Tribunal.
It therefore follows that the application for review must be dismissed and the Applicant must pay the First Respondent's costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Deputy Associate: Ann Pretty

Date: 14 March 2007