MZXOQ v Minister for Immigration
[2007] FMCA 1348
•4 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXOQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1348 |
| MIGRATION – Refugee Review Tribunal – whether the Tribunal failed to consider all of the applicant’s claims – whether the Tribunal denied the applicant procedural fairness – significance of subjective fear. |
| Migration Act 1958, s.424A |
| Chanv Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 |
| Applicant: | MZXOQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 105 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 20 June 2007 |
| Date of last submission: | 20 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 4 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Esther M James |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed on 2 February 2007 and amended on 20 June 2007 be dismissed.
The implied application for leave to amend the application to include a ground that the Tribunal failed to consider the applicant’s subjective fear is refused.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 105 of 2007
| MZXOQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant is a 31 year old male citizen of Sri Lanka. He first arrived in Australia on 7 March 1998 as the holder of a student visa. On 15 August 2000, he unsuccessfully applied for a protection visa and departed Australia on 3 May 2005. He returned to Australia on
27 November 2005 as the holder of a prospective marriage visa. The marriage did not take place. On 7 August 2006, the applicant made a second application for a protection visa. A delegate of the first respondent refused that application and the applicant applied to the Refugee Review Tribunal for review of the decision. On 8 January 2007, the Tribunal affirmed the delegate’s decision. On 2 February 2007, the applicant filed in this court an application for judicial review of the Tribunal’s decision.
Issues
The applicant says that the Tribunal:
a)failed to consider his express claims to be at risk of persecution because of his social group, namely, his family, his Sinhalese race and his membership of the UNP;
b)denied him natural justice by regularly implying he was not a credible witness, failing to give proper consideration to his credible account, giving undue weight to inconsistencies and taking into account irrelevant considerations;
c)failed to review the decision in accordance with s.47, s.65 and s.414 of the Migration Act 1958 (“the Act”); and
d)failed to consider his subjective fear.
Initial claims
The applicant said that his brother had been an intelligence officer in the Sri Lankan army who had a lot of information about the LTTE and the corruption of high-ranking officers who supported the PA party. The applicant claimed that his brother was in the process of leaking the information about the corruption of the PA army officers to the UNP when he was killed by the LTTE. The applicant said the PA army officers had not sent adequate assistance to the applicant’s brother and his team. He said the applicant and other members of his family actively supported the UNP.
The applicant claimed that after his brother's death, the applicant discovered his brother's diaries and found that they contained information about LTTE operations and the corruption of high-ranking officers. The applicant said that he gave some of the diaries to the Sri Lankan authorities and said that he knew that they were used to arrest LTTE members.
The applicant claimed that soon afterwards, he received threatening telephone calls and some unknown Tamil people tried to break into his house. The applicant said that he reported these events to the local police but they did not record or investigate the complaint. The applicant said that in late 1999, some Tamil youths again tried to break into his house but were interrupted by barking dogs. The applicant said that he and another brother were terrified and their mother organised for them to leave Sri Lanka.
The applicant said that he feared being persecuted for releasing his brother's diaries and also because he had used some of the information to support the UNP and against the PA. He said he feared harm from the LTTE and the PA. More particularly, the applicant said that he had been beaten up by PA supporters after the UNP lost the 1994 election and had subsequently received anonymous death threats by telephone. The applicant said that when he returned to Sri Lanka in March 2005 he again received death threats. He said that the LTTE wanted to take revenge on him for disclosing their future plans and operational mechanisms that had been recorded in his brother's diaries.
Tribunal’s reasons for decision
The Tribunal noted various inconsistencies in the applicant’s claims. The Tribunal concluded that the applicant’s brother was killed by the LTTE because he was a commando officer fighting against them. The Tribunal did not accept that the LTTE had any reason to take revenge on the applicant’s family members. The Tribunal examined those of the brother’s diaries that were provided to it and found that they contained no sensitive information about the LTTE or about corruption amongst officers in the Sri Lankan Army. The Tribunal did not accept that the applicant’s brother’s diaries were passed on to anyone in authority or used by the UNP against the PA.
The Tribunal did not accept that the authorities in Sri Lanka would not have acted on a complaint that Tamil men, who were allegedly members of the LTTE, had attempted to break into the applicant's house. The Tribunal did not accept that the applicant or his mother had received death threats as it considered that the diaries were innocuous. The Tribunal considered that the applicant would not be persecuted by reason of his membership of the UNP or because he was a Sinhalese male.
Ground 1: failure to consider claims
In the amended application filed on 20 June 2007, the first ground of review is:
The Tribunal acted without or in excess of jurisdiction, and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material.
Particulars
The Tribunal failed to consider the Applicant’s express claim that he was at risk of persecution because of his association with a particular social group, namely his family, his race-Singhalese and been political party member of UNP.
The Tribunal ignored/failed to consider relevant material submitted by the Applicant namely he was a Singhalese belong to the same family as his late brother and was a political part member. His political opinion neither his race has been considered by the Tribunal.
It is clear that the Tribunal did consider whether the applicant faced persecution because he and members of his family were members of the UNP. The Tribunal said at page 21 of its reasons:
… The Tribunal finds that he does not have a well founded fear of persecution for reasons of his involvement in the UNP. The Tribunal does not accept that the applicant faces a real chance of persecution because his family members are members of the UNP.
The Tribunal finds that the applicant does not have a well founded fear of persecution in the reasonably foreseeable future for reasons of an imputed political opinion, actual political opinion or because of his membership of the particular social group of his brother's family.
The Tribunal did not accept that the members of the applicant's brother's family faced persecution as a result of information in the brother's diaries because the Tribunal did not accept that the brother's diaries contained any sensitive information at all. The Tribunal found that the applicant had not been involved in any UNP activities since 1998 and did not accept that he had received death threats from PA supporters or that he faced a real chance of persecution because his family members were members of the UNP. Thus, the Tribunal expressly considered whether the applicant, as a member of the social groups consisting of his family and UNP members and supporters, faced persecution. It decided, for reasons that were open to it, that he did not.
The Tribunal went on to expressly consider at pages 21 to 23 of its decision whether the applicant, as a Sinhalese male, faced a real chance of persecution. The Tribunal noted the contents of the Hotham Mission report and concluded that it is:
... only Sinhalese with associations with Tamils and those who had converted and possibly those who had opposed the JVP who were at risk. The applicant does not fall within these categories.
The Tribunal expressly concluded that:
… there is no real chance that the applicant will be persecuted in the reasonable foreseeable future for reasons of his ethnicity or membership of the particular social group of Sinhalese males …
In these circumstances, it is clear that the Tribunal considered whether the applicant faced a real chance of persecution by reason of his Sinhalese race, his membership of the social group of his family and his and his family’s membership of the UNP. This ground is not made out.
Ground 2: natural justice
The second ground of review is as follows:
The Applicant was denied natural justice
Particulars
The Tribunal questioned the Applicant in a fashion that implying in regularly that he was not a credible witness and therefore preventing the Applicant in putting forward his case.
The member failed to give proper consideration to the credible account of the Applicant.
The Member has given undue weight to perceived inconsistencies between the testimony of the Applicant. In particular the previous testimony. The perceived inconsistencies are minor and quite attributable to problems with a person who have suffered persecution. The Member has taken into account irrelevant considerations that have DENIED THE Applicant natural justice.
a. implying applicant not credible
The Tribunal, in some cases, has questioned an applicant in such an overbearing manner that the applicant was unable to properly give his evidence. However, in this case, the applicant did not provide to the court a transcript of the hearing before the Tribunal. The applicant filed an affidavit sworn on 1 February 2007 with his application. It said that “the rules of natural justice or procedural fairness were breached” but gave no details of that allegation. Accordingly, the only evidence about what happened at the hearing is that contained in the Tribunal’s reasons. The applicant did not point to any particular passage in the Tribunal’s summary of the evidence that he said demonstrated that he had been overborne.
The Tribunal's summary of the hearing sets out, apparently in some detail, what was said at the hearing. There are large tracts which appear to recount the applicant's evidence interspersed with questions and comments from the Tribunal. The comments and questions by the Tribunal in relation to the various issues in the proceeding appear to be in a similar style. In relation to the death of the applicant's brother, the questions and comments include the following:
The applicant was asked why he believed there was a delay in rescuing his brother or sending reinforcements.
He was asked why he believed it was a deliberate decision not to assist his brother, rather than just gross incompetence or bad luck.
The applicant was asked again why he believed there were actions taken deliberately that led to his brother's death.
The applicant was asked why he believed his brother was not rescued; was it due to incompetence or lack of manpower, rather than a deliberate decision to leave him.
The applicant was asked again why he believed this was deliberate rather than incompetence.
The applicant was asked whether he was claiming that Colonel Jayasekara was willing to sacrifice hundreds of soldiers just to get his brother, as hundreds had been killed in this advance.
The applicant was asked why Colonel Jayasekara hated his brother so much.
The applicant was asked why this would be a problem for Colonel Jayasekara, given that he was the commanding officer and this could not be taken away from him.
He was asked if Jayasekara wanted to get his brother so much, why not just kill his brother and make it look like an accident or an ambush.
I am not persuaded that the applicant was denied procedural fairness. Based on the summary of the Tribunal hearing set out in the Tribunal's reasons, I consider that the manner of the Tribunal’s questioning of the applicant was fair and reasonable. There is no other evidence before the court of what happened at the Tribunal hearing. The summary suggests that the Tribunal fairly alerted the applicant to its doubts about his account and gave him numerous opportunities to assuage those doubts. There is no indication that the applicant was repeatedly interrupted or cowed by aggressive or excessively sceptical questioning.
b. consideration of credible account
In relation to the alleged failure to properly consider the applicant's allegedly credible account, it is generally for the Tribunal to decide whether an account is credible or not. The applicant has not particularised this claim. It appears to me that the Tribunal applied its mind to the various claims made by the applicant. I am not persuaded that this ground is made out.
c. undue weight to inconsistencies
With limited exceptions, the assessment of the weight to be given to inconsistencies or other aspects of an applicant's account is a matter for the Tribunal. Inconsistencies go to the credibility of the applicant's claims. The assessment of credibility is generally within the jurisdiction of the Tribunal.
The Tribunal identified a good many inconsistencies in the applicant's account which went to fundamental aspects of the applicant's claims. For example, the applicant claimed previously that he had given the diaries to the authorities and they had used the information to arrest LTTE members. However, his evidence to the Tribunal was that he had never given any of the diaries to the authorities but had given the diaries to newspapers. The applicant had claimed in the past that there were diaries hidden in Sri Lanka but told the Tribunal that there were no hidden diaries. The applicant had previously claimed that he had received threatening telephone calls demanding that he hand over the diaries but he told the Tribunal that he had never received such telephone calls. There were numerous other inconsistencies identified by the Tribunal.
In the circumstances, I consider that the Tribunal's conclusions about the inconsistencies in the applicant's account were open to it and were not indicative of a denial of natural justice. I should add that the Tribunal's conclusions about the brother's diaries were not based only on inconsistencies in the applicant's account but also on its examination of the diaries that were presented to it. Those diaries did not contain any sensitive information of the sort alleged by the applicant.
d. irrelevant considerations
The applicant did not identify any irrelevant considerations that the Tribunal took into account. I am unable to detect any. Ground 2 is not made out.
Ground 3
The third ground of review is as follows:
The Tribunal failed to review and consider the Application for the purposes of Section 47, 65 and 414 of the Migration Act 1958.
Particulars
The Applicants refer to and repeat the particulars set out in paragraphs 1, and 2;
The applicant in relation to this ground relies on the same matters as he relied on under grounds 1 and 2. Neither of those grounds was made out. In these circumstances, I do not accept that the Tribunal failed to conduct the review and consider the application as required by the Act.
Ground 4
In his written contentions, the applicant raised a further issue that had not been raised in his amended application. The applicant submitted that:
The Tribunal did not consider the subjective fear of the Applicant or his well founded fear of persecution, but considered it in an objective manner.
…
... the fear claimed by the Applicant based on his subjective experiences satisfies the objective requirement of being “well-founded” as it is a genuine fear founded on a real and substantial basis.
The relationship between an applicant’s subjective fear and the objective foundation for that fear is addressed in the UNHCR Handbook On Procedures and Criteria for Determining Refugee Status at paras.37 and 38 as follows:
[37] The phrase 'well-founded fear of being persecuted' is the key phrase of the definition ... Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin.
[38] To the element of fear - a state of mind and a subjective condition - is added the qualification 'well-founded'. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term 'well-founded fear' therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration.
The High Court in Chanv Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 accepted that exposition, particularly at page 396 per Dawson J and at page 406 per Toohey J. It is clear that a subjective fear is not enough to satisfy the requirements of the Convention. The fear must be well-founded. That is, it must have an objective basis in reality.
The Tribunal noted the applicant’s claims to have a subjective fear but concluded that there was no basis in reality for any such fears. Accordingly, the Tribunal considered the correct question, which was whether the applicant had a well-founded fear. Proposed ground 4 cannot be made out. Accordingly, the implied application to amend the application to include this ground is refused.
Conclusion
As none of the grounds have been made out, the application must be dismissed with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 4 September 2007
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