MZXNE v Minister for Immigration

[2007] FMCA 1621

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXNE v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1621

MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – alleged jurisdictional error – grounds stated in applicant’s amended application not made out.

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 231 ALR 592
Applicants S1266 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1771
SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719

Applicant: MZXNE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1454 of 2006

Judgment of: Burchardt FM

Hearing date: 13 September 2007

Date of last submission: 13 September 2007

Delivered at: Melbourne

Delivered on: 12 October 2007

REPRESENTATION

Counsel for the Applicant: Ms L. De Ferrari

Solicitor for the Applicant: Asylum Seeker Resource Centre

Counsel for the First Respondent: Ms C.L. Symons

Solicitor for the First Respondent: Clayton Utz

ORDERS

1. That the application be dismissed.

2. That the Applicant shall pay the First Respondent’s costs fixed in the sum of $5,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1454 of 2006

MZXNE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 27 September 2006. The decision of the Tribunal affirmed the decision of the delegate not to grant the Applicant a protection (class XA) visa.

2. The Applicant's amended application filed on 27 April 2007 asserts three grounds. They are: (a) breach of the hearing rule, (b) failure to deal with a claim and (c) failure to engage in the necessary speculation as to the chances that the Applicant would experience persecution.

3. In the Applicant’s contentions of fact and law filed on 27 April 2007, the first ground is defined as a denial of natural justice.

4. This issue concerned the Tribunal's use of country information. 

5. The delegate, in a decision dated 23 June 2005, accepted that political violence based on political affiliation was endemic in Sri Lanka, both interparty and intraparty, and dependent on who is in power at the time (CB71). The delegate, however, did not accept the Applicant's claims that he himself had been the subject of political violence.

6. At the first Tribunal hearing which led to a decision dated 6 January 2006, nothing relevant was put as to this issue. Rather, again the Tribunal did not accept what the Applicant said about political violence being effected upon him.

7. Accordingly, the Applicant submits that he was entitled to proceed on the basis that the fact of endemic political violence in Sri Lanka, including at election times but occurring at all times over more or less a continuum, was not in issue.

8. The Applicant submitted that the decision of the High Court in

   
   SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs

   [2006] 231 ALR 592 leads to the conclusion that a failure by the Tribunal to identify an issue that it now regarded as dispositive gave rise to jurisdictional error.

9. In fact, as the Applicant conceded (Applicant's contentions of fact and law, paragraph 22), the Tribunal did put certain propositions about political violence to the Applicant.

10. The relevant transcript extract (SCB18) is in the following terms:

    MR KATSAMBANIS:   I am aware that there has been political violence in Sri Lanka in the past but a lot of the reports I have read indicate that the level of political violence has reduced significantly over the past few years, which would indicate that threats to people participating in political parties have also reduced. 

    INTERPRETER:   My fear - sir is correct, sir, but that area where I - we are only - our house is the only house supported the UNP.  All the surrounding houses are the supporters of PA.  So I can't believe if I go there I will not be threatened or intimidated.

11. That extract followed an earlier extract at SCB13 in these terms:

    MR KATSAMBANIS:   I am aware that in election campaigns in Sri Lanka, things get very heated.

    INTERPRETER:   Yes, sir.

    MR KATSAMBANIS:   But any - but sometimes people make threats in that circumstance and have no intention of carrying it out.  They make the threats in the heat of the moment ... Well, from information I have read, there is a lot of passion in Sri Lankan campaigns ‑ ‑ ‑ 

    INTERPRETER:   Yes, sir.

    MR KATSAMBANIS:   - - - and I am stating that often comments made in the heat of the moment may not necessarily be comments that someone intends to carry out. 

    INTERPRETER:   But for me the threats came right through.

12. In its decision at CB132-133, the Tribunal noted that the history of elections in Sri Lanka indicated that election campaigns are carried out with a heightened level of excitement and that election violence is prevalent during such periods. The Tribunal did, however, also refer to country information from the United States Department of State which suggested that there had been a decrease of violence at least in the 2004 election. The Tribunal went on to accept that the Applicant would be subject to some low level of threats and intimidation from political opponents in the context of robust political debate. The Tribunal, however, found on the evidence before it that such threats as were made to the Applicant were idle threats made in the context of the inflamed political participation in Sri Lanka.

13. It was not necessarily the case that the Tribunal had to provide the

    
    

    text of the country information to the Applicant. What the Tribunal was required to do was to put to the Applicant "the key factors

    
    

    and critical issues on which that aspect of the decision was ultimately based and explained why they were important" (Applicants S1266 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1771 at [34]).

14. As the Full Court of the Federal Court said in SZISM v Minister for Immigration and Citizenship [2007] FCAFC 61 at [27]:

    Neither SZBEL 231 ALR 592 nor the Migration Act requires the text of country information necessarily to be supplied to an applicant.  Whether or not an issue relied upon by the Tribunal can be said to have been one which should have raised with the applicant will be a matter for of fairness in each case.

15. Here, the Tribunal put it to the Applicant in terms that the Tribunal had information that suggested that while the political climate, particularly during elections, in Sri Lanka was robust, things had improved to an extent in more recent times. Further, the Tribunal in my view sufficiently clearly identified that people might not always mean what they said in such situations. The Applicant was given an opportunity to comment on both these propositions. He disagreed roundly with the latter so far as it concerned him ("But with me the threats went right through") and arguably only a qualified way with the first.

16. Looking at the way in which the Tribunal reached its conclusions, in my opinion the conduct of the Tribunal in dealing with these issues in this way is not such as to give rise to a denial of natural justice or breach of the rules as to fairness such as to ground jurisdictional error.

17. There was a further subpart of the application raised in this regard. It was submitted by counsel for the Applicant that the Tribunal's findings that the Applicant had given it two highly contradictory versions of the evidence was not tenable. The relevant part of the Tribunal's decision is set out at CB131 to 132. In essence, the Tribunal noted that the Applicant had originally claimed he had been assaulted by a group of people when he was at his mother's house and that on a separate occasion a pistol had been held to his head. The Tribunal noted that initially the Applicant said the assault at the mother's house took place when he was on holidays from his job in the Maldives in May 2003 but changed that later to the assertion that it happened in 2001.

18. Counsel for the Applicant submitted that this was not a finding that was open on the evidence.

19. At SCB5, the Applicant confirmed that he had worked in the Maldives from September 2002 until December 2004. 

20. At SCB6, he said that he returned to Sri Lanka on three occasions, of which the first appears to have been in May 2003. 

21. At SCB8, the Applicant said that he was subjected to an assault in 2003 when people came into his house and abused him.

22. From SCB7, it seems that that assault is placed during his period of employment in the Maldives.

23. At SCB8 at line 8, he said that the assault was in 2002 before he left to the Maldives but then at lines 16 to 22 confirmed that this was when he had been back to Sri Lanka for a holiday from the Maldives and it must have been in May. He confirmed that it was when he was with his mother at Kelaniya.

24. It was at SCB15 that the Applicant said that the assault at his mother's house took place in 2001.

25. In the circumstances, I do not think it can be fairly said that there was no evidence before the Tribunal to justify the factual finding that the Tribunal made – namely that there were two contradictory versions of the evidence.

26. The fact-finding process is essentially one for the Tribunal. If there had been no evidence whatever to justify the Tribunal's finding, then I accept that it might well constitute jurisdictional error, but the passages that I have set out above do not support this conclusion.

27. The second ground raised by the Applicant is that the Tribunal failed properly to deal with his claim that he had a heightened profile owing to his family associations. In substance, this was a reference by the Applicant to the fact that where he lived, his family were the only UNP supporters and that therefore his profile was raised. This claim was not in my view, as the Applicant has asserted, an integer of his claim. Rather, I accept the submission of the First Respondent that this was not a matter that could independently substantiate a claim for refugee status. It was a piece of evidence provided in support of the primary claim that the Applicant was entitled to refugee status based on his support of the UNP. The Tribunal did in fact refer to this claim in its reasons for decisions, CB126, but did not make a specific finding in relation to that issue.

28. The Tribunal's essential finding was that the Applicant did not have a well-founded fear of persecution because of his support for the UNP. In these circumstances, it was not necessary for the Tribunal to deal specifically with the Applicant's reference to there being only two or three families where he lived who supported the UNP.

29. The final claim advanced by the Applicant is that the Tribunal failed to consider what would happen if the Tribunal was wrong.

30. The Tribunal expressly found that the Applicant would not be likely to be subject to anything more than low-level harassment or intimidation.

31. Indeed, one aspect of the Tribunal's decision which received little attention before the Court was a finding that the Applicant could in fact relocate to Galle and live there (CB130).

32. I accept the submission of the First Respondent that the Tribunal's findings concerning threats made to the Applicant in the past do not reveal that it had any doubts in making those findings. Accordingly, it was not necessary for the Tribunal to engage the "What if I am wrong?" test.

33. I respectfully adopt the observations of Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719

    
     

    at [67]:

    In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons.  If a fair reading of the reasons as a whole shows that the RRT had "no real doubt" (to use the language of Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.  Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued.  A "fair reading" of the reasons incorporates the principle that the RRT's reasons should receive a "beneficial construction" and should not be "construed minutely and finely with an eye keenly attuned to the perception of error":  Wu Shan Liang at 271-272.

34. In my opinion, the Tribunal's reasons, read as a whole, are of the character described by Sackville J in that instance. The Tribunal did not in my view fall into error in this regard.

35. It follows that the application must be dismissed and the Applicant must pay the First Respondent's costs. I will so order.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Deputy Associate:  Ann Pretty

Date:  12 October 2007