MZXNO v Minister for Immigration

[2007] FMCA 741

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXNO v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 741

MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – alleged failure to consider integer of applicant’s claim – no jurisdictional error – application dismissed.

Migration Act 1958

NAZH v Minister for Immigration & Multicultural Affairs [2007] FCA 5

Applicant: MZXNO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1515 OF 2006

Judgment of: Burchardt FM

Hearing date: 2 May 2007

Date of last submission: 2 May 2007

Delivered at: Melbourne

Delivered on: 24 May 2007

REPRESENTATION

Counsel for the Applicant: Mr J. Gibson

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Mr W. Mosley

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the name of the First Respondent be changed to the “Minister for Immigration and Citizenship”. 

2. That the application filed 30 November 2006 be dismissed. 

3. That 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 1515 of 2006

MZXNO

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") affirming a decision of the delegate of the First Respondent not to grant the Applicant a protection visa.  The Tribunal's decision was made on 23 October 2006 and notified to the Applicant by letter dated 2 November 2006. 

2. The relevant facts and chronology are set out in paragraphs 1-7 of the First Respondent's contentions of fact and law which are not controversial and which I set out as follows:

   ·The Applicant is a Sri Lankan national who arrived in Australia on 25 May 1997 on a visitor visa using a passport he claimed to be false, in the name of Tanesh Bernard Dias.  The Applicant stated that his name was M Y and not Tanesh Bernard Dias. 

   ·On 27 August 1997, the Applicant applied to the First Respondent's department for a protection visa.

   ·On 1 April 1998, a delegate of the First Respondent determined that the Applicant was not a person to whom Australia had protection obligations and refused the application. 

   ·On 29 April 1998, the Applicant applied for review of the delegate's decision to the Tribunal pursuant to the provisions of the Migration Act 1958 ("the Act"). 

   ·On 28 November 2000, the Tribunal affirmed the decision under review.  The Applicant sought judicial review of the first Tribunal decision in the Federal Magistrates Court, which dismissed the Applicant's application by orders made on 15 November 2005.  On appeal by the Applicant, by consent on 10 April 2006, the decision of the Federal Magistrates Court was set aside and in view thereof the decision of the Tribunal was set aside, and the matter remitted to the Tribunal. 

   ·On 2 November 2006, the Tribunal handed down its decision which again affirmed the decision under review. 

   ·On 30 November 2006 the Applicant made application for judicial review of the Tribunal's decision.  An amended application is dated 5 February 2007. 

3. The Applicant's case falls as counsel for the Applicant readily conceded, and indeed asserted, within a narrow compass.  It is whether the Tribunal failed to consider an implicitly articulated claim, or integer of his claim, namely, the risk of persecution, of detention and torture on the grounds of imputed political opinion as a Tamil without a national identity card who is unable to establish his identity and/or as someone who is treated as a Tamil from the North or East for this reason and was, on the Tribunal's own findings, likely to be questioned on return (emphasis as in paragraph 16 of the Applicant's contentions of fact and law). 

4. The submission advanced by counsel for the Applicant before the Court drew heavily upon an extract from a letter from the Applicant's advisor set out at CB 171, which relevantly asserts:

   “The Applicant had an identity card that stated both his Tamil name and his Muslim name.  This identity card has been destroyed by his uncle, keen to remove evidence of the Applicant in the context of visits by authorities seeking the Applicant, and after assisting the Applicant to leave Sri Lanka on false passports.  If the Applicant was forced to return to Sri Lanka, he would not have an identity card.  This is likely to lead to adverse attention from the authorities in Colombo and could easily uncover the Applicant's status as a person of interest.”

5. This extract of that submission was the springboard for the way in which the Applicant's counsel dealt with the matter. 

6. I am far from convinced that the claim now put on behalf of the Applicant is indeed an integer of his case that the Tribunal failed to consider. 

7. The Tribunal characterised the Applicant’s representative’s written submission at CB 200 in the following terms:

   “On 22 August 2006 the Tribunal received a submission from the Applicant's adviser, arguing that the Applicant risked persecution on the distinct grounds of race, religion, membership of a particular social group and imputed political opinion, and due to his Tamil ethnicity combined with the other grounds.  The particular social group "young Tamil men" are commonly perceived by the Sri Lankan authorities to be loyal to the Tamil Tigers, and are therefore targeted.  The Applicant's chance of being so targeted was increased due to his past association with the supporters of the Tigers, even though he has no direct involvement with the Tigers.”

8. It is far from clear to me that that is an inaccurate analysis of what it was that the Applicant's written submission contended.  The remarks about the absence of a national security card and the risk of becoming a person of interest upon return were on one view merely supportive of the overall proposition that the Tribunal identified. 

9. If however, that reservation is incorrect, I think there is still very considerable force in the analysis of the Tribunal's decision contended for by counsel for the First Respondent. 

10. The Applicant advanced a number of factual assertions in his case.  They are summarised in paragraphs 11-13 of the First Respondent's contentions of fact and law.  It is not necessary to set those out seriatim.  

11. It is correct to say that the Tribunal did not accept any of the significant factual assertions advanced by the Applicant and that it concluded on credit grounds, that he had never been a person of interest to the authorities.  The Tribunal set out its reasons for those findings at CB 209-211.

12. Most particularly, the Tribunal found that:

    “It follows from the foregoing that the Tribunal does not accept that either the authorities or the LTTE, or any other agent of persecution, had an adverse interest in the Applicant when he left Sri Lanka.  It does not accept that his uncle had any convention reason to destroy his NIC, and it does not accept that he left Sri Lanka for convention reasons (see CB 210).”

13. It was submitted by counsel for the Applicant that once the Tribunal accepted that the Applicant did not have a national identity card, it failed to appreciate the significance of this lack. 

14. This was said therefore to give rise to the jurisdictional error asserted, in the manner indicated by Madgwick J in NAZH v Minister for Immigration & Multicultural Affairs [2007] FCA 5 at [47]-[48].

15. It was submitted that that aspect of the Applicant's case required to be dealt with. 

16. Counsel for the First Respondent pointed out that on any view the Applicant would need a travel document in order to leave Australia.  It was submitted that it is reasonable to suppose that by the time he reaches Sri Lanka he will in fact have a travel document proving his identity and place of birth. 

17. Furthermore, the Applicant has a birth certificate, CB 175-176 (the original being 177-178) showing not only his birth place in Colombo but also his new Muslim name.  It was submitted that while the country information (see CB 205) shows that those with Tamil names having a national identity card identifying the North or East as a place of birth may face some increased risk of arrest, there is nothing to suggest that the NIC is the only means of establishing identity. 

18. Furthermore, in my view, as the country information makes plain, it is those with Tamil names who are questioned (the Applicant no longer has a Tamil name - see CB 205), and I think the First Respondent is correct to submit that the Applicant's particular circumstances simply do not suggest on any reading of the country information and of the Tribunal's decision, that the Applicant will indeed face such risks if he returns. 

19. I further accept the submission of the First Respondent that the Tribunal did properly consider, to the extent that it may have been required to do so, that Applicant's claims in relation to his NIC.  The following extract from CB 210 is in my view decisive:

    “The Tribunal does not accept, on the evidence, that the Applicant has a pro-Tiger political opinion.  It does not accept, based on country information about the profile of a person of adverse interest to the authorities in Colombo in relation to LTTE activity, that the Applicant faces a real chance of being detained (and therefore mistreated) by the Sri Lankan authorities.  It is Tamils from the North, who have no raison di etre in Colombo that are at risk.  Furthermore, the Applicant is a Muslim convert and his interests would be perceived to be opposed to the LTTE.  Therefore, the Tribunal does not accept that the Applicant faces a real chance of serious harm due to an imputed pro-LTTE political opinion.”

20. In my opinion, the Tribunal did not fall into jurisdictional error.  The Tribunal was well seized of its task which was to determine whether or not the Applicant was a person to whom Australia owed convention protection.  It discharged that obligation by considering the Applicant's claims which, insofar as they went to matters of credit, it did wholly contrary to his claims. 

21. I do not think that the Applicant in fact through his written submission indeed advanced the integer now said to have been overlooked by the Tribunal, but if that analysis be wrong, in my view the Tribunal's findings are sufficiently attuned to the implicit claim now advanced and have dealt with it in my view in a way that was clearly appropriate on the evidence.  

22. I am conscious that in making these findings I am coming close to engaging in merits review, with which this Court is not concerned, but that is the way the case has been run and it is not possible to avoid some discussion of it in order for the matter to be properly determined. 

23. It follows that the application must be dismissed and the Applicant must pay the First Respondent's costs. 

24. I will further order that the name of the First Respondent be changed to the “Minister for Immigration & Citizenship”. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:  Brooke Evans

Date:  24 May 2007