MZXPH v Minister for Immigration

[2007] FMCA 1620

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXPH v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1620

MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – alleged jurisdictional error – application without merit.

Applicant: MZXPH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 243 of 2007

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

The Applicant: In person

Counsel for the First Respondent: Ms S.A. Burchell

Solicitor for the First Respondent: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

2. 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 243 of 2007

MZXPH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 22 January 2007, the Refugee Review Tribunal (“the Tribunal”) affirmed the decision of a delegate of the Minister not to grant the Applicant a protection (class XA) visa.

2. On 2 March 2007, the Applicant filed an application seeking judicial review of that decision.

3. The application asserted four grounds of application which were in very general terms.

4. On 19 June 2007, the Applicant filed contentions of fact and law which were once again in very general terms and did not correspond with the matters in the original application itself.

5. At the hearing before the Court on 11 September 2007, the Applicant filed a written submission (“the Applicant’s submission”) which, it may be fairly said, attacked a number of findings of fact made by the Tribunal.

6. The First Respondent characterised the factual claims advanced by the Applicant before both the delegate and the Tribunal in paragraph 11 of his contentions of fact and law filed on 31 August 2007. That characterisation in my view is accurate and reads as follows:

   (a)That his grandfather was a police officer in Sri Lanka who was threatened by Anuradda Ratwatte, the former Deputy Minister of Defence who was a member of the then ruling SLFP.  The applicant claimed that his grandfather was later assassinated and his family suspected that Ratwatte was responsible (CB28).

   (b)That his father joined the police force and rose to the level of Assistant Superintendent in the Biyagama district which was within the electorate of the former president of Sri Lanka, Ranil Wickramasinghe of the then ruling UNP (CB28).

   (c)In 1995, the SLFP gained power in Sri Lanka and Ratwatte became the Deputy Minister of Defence.  The SLFP established the "Batalanda commission" to investigate the illegal acts alleged to have been committed while the UNP was in power.  He claimed that on the instruction of Ratwatte, his father was falsely charged and sentenced to 15 years imprisonment.  He served five years before being acquitted by the Court of Appeal (CB28-29).

   (d)That he and his family were harassed and threatened by Ratwatte's henchmen, his stepmother and stepsister migrated to Australia and he remained in Sri Lanka until May 2005 when he travelled to Australia on his student visa because his father was told by friends in the police force that Ratwatte's henchmen would take the applicant into custody until his father surrendered to the police (CB29).

   (e)Ratwatte is currently the Defence Adviser to the Sri Lankan President and responsible for security and police services, and his father has been advised by police colleagues that Ratwatte is seeking to persecute him and he was advised to leave Sri Lanka.  His father now resides overseas but was advised that a warrant had been issued for his arrest in relation to a murder that occurred eight years ago (CB29).

   (f)That he is a member of the UNP in Sri Lanka and that he openly identified with being a UNP supporter involved in many activities.  He claimed that he faced problems because of his association with the UNP (CB29).

   (g)He would be persecuted in Sri Lanka by Ratwatte and has no-one to assist or provide protection to him in Sri Lanka (CB29‑30).

7. The Applicant's submission essentially seeks to raise again these same factual issues.

8. The Tribunal found against the Applicant on all relevant points.

9. It canvassed the material thoroughly and its findings and reasons at CB126 to 131, in my opinion, were clearly open to it on the materials.

10. It is for the Applicant to make out his case before this Court.  Although he is not legally represented and although I of course accept that it must be difficult for him to present his case, the fact is that he has advanced no tenable challenge to the Tribunal's decision. 

11. All the matters set out in the Applicant’s submission are simply challenges to factual findings made by the Tribunal. They constitute impermissible merits review.

12. The four grounds set out in the original application are all also untenable.

13. Ground 1 alleges error of law and has three particulars numbered (a)-(c).  

14. The Tribunal did not misapply the law relating to the definition of refugees.  The Tribunal clearly set out the case law and elements of the definition of persecution in the convention at CB116 to 118 (particular (a)). 

15. The Tribunal did give proper consideration to the Applicant's claim that if he returned to Sri Lanka, he would be taken into custody by the authorities on false charges. The Tribunal expressly dealt with these matters in its reasoning at CB126 to 130. The Applicant has not identified any alleged jurisdictional error in that process (particular (b)).

16. The Tribunal was not obliged to speculate about the possibility of the Applicant being harassed by Mr Ratwatte. The Tribunal found that the prosecution of the Applicant's father in relation to robbery and abduction charges was not in any way politically motivated and, accordingly, that the Applicant and his family had not been harassed or threatened by Mr Ratwatte or his henchmen.  Given that finding, there was no requirement for the Tribunal to speculate in the fashion that the Applicant seeks (particular (c)).

17. Ground 2 merely effectively repeats ground 1(a).  It has not been made out.

18. Ground 3 is simply a generalised assertion that there was no evidence or material to justify the making of the Tribunal's decision.  The particulars are:  "the Tribunal relied upon materials relating to the situation in Sri Lanka generally and not specific to the Applicant's claim".

19. Contrary to the Applicant's position, there was plentiful material to justify the basis upon which the Tribunal reached its conclusions.

20. Ground 4 merely subsumes grounds 1 to 3 and adds nothing whatever.

21. The Applicant's contentions of fact and law amount to four paragraphs.  Each paragraph is in wholly generalised terms and does not in my view identify any jurisdictional error on the part of the Tribunal.

22. At the hearing before me, the Applicant, in response to my request that he say anything he wished in support of his application, merely repeated his assertion that if he returned to Sri Lanka, he would be harassed.  He effectively repeated the sort of things set out in his written submission. 

23. In my opinion, the application is without merit and I will make orders that the application be dismissed and that the Applicant 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:  12 October 2007