MZXRH v Minister for Immigration
[2007] FMCA 1900
•21 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXRH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1900 |
| MIGRATION – Refugee Review Tribunal – protection visa – whether jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 430(1) |
| Applicant: | MZXRH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 924 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 2 November 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 21 November 2007 |
REPRESENTATION
| Applicant: | In person (assisted by interpreter) |
| Counsel for the First Respondent: | Ms S.A. Burchell |
| Solicitor for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
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 924 of 2007
| MZXRH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 30 May 2007. The Tribunal had affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
Background
The Applicant is a male citizen of Sri Lanka who was born in 1965. He arrived in Australia on 22 April 1996. On 8 July 1997 he lodged an application for a protection visa. On 10 November 1997 a delegate of the First Respondent refused to grant the protection visa to the Applicant.
For reasons which are not apparent, it seems that the Applicant was not notified of the delegate's decision and review rights until 14 December 2006. The Applicant's solicitors then applied to the Tribunal for review of the delegate's decision on 4 January 2007. On 6 March 2007 the Applicant attended the Tribunal and gave oral evidence. As indicated earlier, the Tribunal affirmed the decision of the delegate not to grant a protection visa, and did so in its decision dated 30 May 2007.
Before making its decision the Tribunal forwarded a letter dated 7 May 2007 to the Applicant, pursuant to s.424A of the Migration Act 1958 (Cth) ("the Act"), inviting the Applicant to comment on information that would be the reason or part of the reason for deciding that the Applicant was not entitled to a protection visa ("the s.424A letter"). The Applicant, in response to the s.424A letter, provided further information under cover of letter dated 24 May 2007 (Court Book pp.138‑140).
It is perhaps understandable, given the extraordinary delay between the delegate's decision and notification, that the Applicant, having remained in Australia since 22 April 1996, has pursued the application for judicial review with a degree of vigour and expressed a strong desire to remain in Australia when he appeared before this court in person, assisted by an interpreter.
The Applicant’s Claim
In his application for a protection visa the Applicant made a number of claims, which I am satisfied have been accurately summarised in the First Respondent's contentions of fact and law filed 22 October 2007, as follows:
· “That his training in motor mechanisms attracted many customers, especially the Tamils who were displaced from the North due to the armed conflicts [CB 18].
· That he supported the United National Party (UNP) during the 1994 Parliamentary elections [CB 18].
· That he was suspected to be a collaborator with Tamil subversives due to his political policies for equal rights for Tamils [CB 18].
· That the State could not protect him and his life was in danger [CB 19].
· That he was imputed with the political opinion of co-operating with the Tamil subversives which caused him to suffer torture and trauma [CB 19].
…
· He was a believer for equal rights for Tamils in Sri Lanka [CB 36].
·He was a member of the UNP youth organisation in Kotahena [CB 36].
·Prior to the 1988 Presidential elections there was an uprising of the Janatha Vimukthi Peramuna (JVP), which was against the delegation of any rights to the Tamils. As a well known member of the UNP youth league, the JVP aimed to kill the applicant. He was advised to hide in the hill country in Nuwara Eliya [CB 36].
·In Nuwara Eliya, the applicant worked with a UNP dissident group opposing the policies of the President of Sri Lanka who ordered the massacre of thousands of JVP members [CB 36].
·The JVP suspected that the applicant was in the hill country hideouts giving tip-offs to the Sri Lankan government authorities regarding the movements of JVP members [CB 36]. The JVP wanted to arrest the applicant.
·He supported the UNP in the 1994 August and November elections and was in charge of the transport unit of the propaganda section [CB 37].
·In December 1994, the police came to the applicant’s workshop making enquiries about the details of vehicles the applicant attended for a period of 6 months prior to the death of Gamini Dissanayake. The police handed the applicant over to the security forces and he was released after 1 week [CB 37].
·The People’s Alliance (PA) harassed UNP supporters and security forces searched the applicant’s house. The applicant claimed that he was blindfolded and taken to an unknown destination where he was ill treated [CB 38].
·In October 1995, he was taken into custody by police forces for 1 week the day after unknown persons burnt oil tankers at Kolonnawa [CB 38]. He escaped custody by payment of a ransom.
·He was told that his life was in danger if he continued to stay in Sri Lanka in view of his Tamil contacts and earlier political activities. He was arrested the day after the Central Bank was targeted on 31 January 1996. He claimed that he was held for 48 hours [CB 38].
·His family is continuously harassed and the applicant is suffering post-traumatic stress [CB 38].”
In his letter in response to the s.424A letter the Applicant sought to explain issues which were raised by the Tribunal in its s.424A letter. In particular, the Tribunal directed attention to the claim by the Applicant that he was a believer in equal rights for Tamils, but compared that claim to his evidence at the hearing that in 1983 during communal riots he helped transport Tamils because he could speak Tamil and was "associated with some Tamil people, and no other reason".
Reference was also made to the claimed support of the United National Party ("UNP") in the August and November 1994 elections; the Applicant's employment, and in particular the identity of his employer; the Applicant's residence details; his relationship with a leading politician; events which followed the assassination of a leading politician; and police action, including circumstances of a claim that the Applicant was taken into custody by police after an attack on oil tanks in October 1995; and the circumstances of the Applicant's release from detention in 1995.
Another issue raised concerned events which occurred in 1996 where the Applicant claimed to have been arrested after an event concerning a bank and a bomb explosion. The Applicant sought to address those issues.
The Tribunal Decision
The Tribunal produced a detailed decision comprising 32 pages. In its decision it recites the claims, including the Applicant's response to those issues raised by the Tribunal in the s.424A letter. Under the heading “Findings and Reasons” the Tribunal accepted the Applicant may have assisted Tamil people during the riots in July 1983 by transporting them to refugee camps. It also accepted the Applicant may be a believer in equal rights for Tamils.
However, the Tribunal did not accept that the Applicant had any political policies for equal rights for Tamils or was imputed with such a political opinion. It did not accept evidence from the Applicant concerning threats made during the time of civil crisis in July 1983, and specifically did not accept that the Applicant was imputed with a political opinion of support for Tamils or the Liberation of Tamil Tigers of Eelam ("LTTE").
Accordingly, the Tribunal did not accept that if the Applicant returned to Sri Lanka he would face a real chance of persecution "because of his actions assisting Tamils during the 1983 riots over 23 years ago" (Court Book p.168). It, otherwise, did not accept the Applicant would face a real chance of persecution, now or in the reasonably foreseeable future, because of his personal beliefs that Tamils should have equal rights.
Although it accepted the Applicant may have been a member of the UNP from 1998, the Tribunal did not accept that he was an active member or supporter of that party. It made that finding based on what it describes as "inconsistencies in his evidence regarding his activities". The Tribunal then recites those inconsistencies. It concluded that the Applicant had not provided "any explanation for the inconsistency in his evidence in regard to in which elections in 1994 he actively supported the UNP" (Court Book p.169).
The Tribunal also expressed doubt that the Applicant was involved in the repair of the leading politician's vehicles and pointed out the discrepancy in the name of his employer. It referred to his evidence in relation to the vehicles as "confusing". Whilst accepting a claim that the Applicant may have had a friend who was a Tamil and to whom he may have provided spare parts from the workshop at some time, the Tribunal did not accept however that the Applicant was ever of any interest to the authorities because of his association with that person.
The Tribunal did not accept the Applicant was targeted by the JVP in 1988 or that he went into hiding, as claimed.
Having not accepted the Applicant was politically active supporting the UNP or the leading politician, the Tribunal did not accept the Applicant was involved in supporting that leading politician during the 1994 presidential elections. It did not accept he was arrested following the assassination of a leading politician. It specifically found that it was "far‑fetched that a Sinhalese UNP member would be detained on suspicion of being implicated in the assassination of a UNP candidate by the LTTE" (Court Book p.171). It, otherwise, did not accept claims by the Applicant that he had been arrested and detained.
The Tribunal referred to the inconsistencies set out in its s.424A letter and again dealt with the assertions by the Applicant, both at the hearing and in correspondence. It did not accept, amongst other things, the Applicant's claims that he had stayed with relatives at any stage or that the police searched the Applicant's home after the bombing of a bank in January 1996. It concluded that it was not prepared to accept the Applicant had been of any interest to the authorities or anyone else in the past and was not satisfied the Applicant had been of interest to the authorities in Sri Lanka.
The Tribunal, significantly, states in its findings the following:
“14.… The Tribunal does not accept the issues which have been highlighted above are minor contradictions. The Tribunal has taken into consideration the passage of time since the applicant experienced these alleged incidents however it has difficulty reconciling this with the numerous deficiencies identified in the applicant's evidence of what he claimed were his experiences in Sri Lanka. The applicant has suggested in his submission he is suffering from a number of physical problems and this has affected his mental capacity. The Tribunal accepts that being separated from his family for a considerable number of years, being in an uncertain situation and wholly dependant on relatives to and friends would be very difficult, however, the Tribunal is not satisfied that this accounts for the numerous problems identified in the applicant's case.”
(Court Book p.174)
As indicated earlier, the Tribunal ultimately did not accept the Applicant would face a real chance of persecution if he returned to Sri Lanka now or in the reasonably foreseeable future for a Convention reason.
The Grounds of the Application
The Applicant has relied upon a number of grounds in the application which I am satisfied have been accurately summarised by the First Respondent in the following manner:
“Ground 1: breach of s.430(1)(b), (c) and (d) of the Act
Ground 2 - The Tribunal did not address the applicant's concern or give it any weight.
Ground 3 - The Tribunal erred in concluding no political policies for equal rights for Tamils or imputed political opinion and failed to comply with the definition of "refugee".
Ground 4 - The Tribunal failed to consider the claim that he feared persecution because the security forces believed that he was a Tamil sympathiser/supporter.
Ground 5 - The Tribunal failed to have regard to the length of time and the effects of mental distress.
Ground 6. There was no evidence to find that the Applicant would not be targeted on return to Sri Lanka.
Ground 7 - The Tribunal failed to properly consider the question of human rights in Sri Lanka and the adverse effect on the applicant.
Ground 8 - The Tribunal failed to apply the real chance test.”
It will be evident from the application that the Applicant appears to have received some assistance in the preparation of the application. However, it is also equally clear, in my view, that many of the grounds relied upon seek to challenge the weight given by the Tribunal to the Applicant's claims and/or otherwise seek, in my view, impermissibly, to re‑agitate the facts.
Grounds 2 to 7
The First Respondent has correctly challenged grounds 2 to 7. Those grounds, in my view, do not reveal any error of law which would constitute jurisdictional error. The Tribunal in its very detailed reasons and findings, which I have deliberately set out in some detail earlier in this judgment, did address the Applicant's concerns. The mere fact that the Tribunal made adverse findings and did not place the weight on the claims which the Applicant sought to place on those claims does not of itself constitute jurisdictional error. The Tribunal simply did not accept the claims; it did so in a manner that was reasonably open to it, free of error.
The Tribunal analysed in some detail the Applicant's claim to be a supporter of equal rights for Tamils but then reached a conclusion reasonably open to it concerning the Applicant's claim and found, relevantly, that the Applicant did not have a political policy for equal rights nor could he be imputed with such political opinion. It clearly considered whether he should be imputed with a political opinion and did so correctly in a manner free of error.
I cannot see any basis upon which it could be claimed that the Tribunal failed to consider the Applicant feared persecution because security forces believed he was a Tamil sympathiser or supporter; it did that in its detailed consideration of the Applicant's claim to seek equal rights for Tamils.
As set out earlier in this judgment, the Tribunal clearly had regard to the length of time and the effects of mental distress upon the Applicant, but it did not find that that those matters were sufficient to outweigh the concerns the Tribunal had in relation to the inconsistencies it highlighted in its s.424A letter and the Applicant's response. The Tribunal was entitled to draw that conclusion and it cannot be claimed that it failed to have regard to the time factor or the mental distress suffered by the Applicant; it clearly referred to those matters in the extract of its decision, set out earlier in this judgment.
Likewise, I accept that the Tribunal specifically made a finding, as to whether or not the Applicant would be targeted on return to Sri Lanka, when it ultimately reached the conclusion that it was not satisfied the Applicant would face a real chance of persecution now or in the reasonably foreseeable future for a Convention reason should he return to Sri Lanka, due to the internal turmoil in that country. The Tribunal reached that conclusion on the material before it, and I am not satisfied that it is appropriate to suggest that there was no evidence to support the Tribunal's finding
Ground 1
In relation to ground 1, the First Respondent submitted that s.430 of the Act is not a sufficient ground to establish jurisdictional error.
In any event, I am satisfied the Tribunal has complied with s.430 and made appropriate findings on material questions of fact; and, otherwise, has set out its decision and reasons for its decision in an appropriate manner. There is no substance in this ground.
Ground 8
The final ground relied upon is ground 8, where the Applicant claims there was a failure to properly apply the real chance test.
The First Respondent has submitted the Tribunal correctly summarised the relevant law and applied that law to the facts as found in relation to the real chance test and the speculation of the chance of persecution.
On my reading of the Tribunal's decision, I can see no error in the application of the real chance test and it is clear to me that the Tribunal simply did not accept that there was a real chance that if the Applicant returned to Sri Lanka he would be persecuted for a Convention reason. The Tribunal set out the relevant law and did so correctly on one occasion, and then proceeded to consider whether the Applicant had a well‑founded fear of persecution.
At the hearing before the court the Applicant, who is self‑represented, was not able to elaborate on the grounds relied upon, and hence I proceeded to deal with those grounds, in the manner set out earlier in this judgment, noting the First Respondent's contentions throughout. I acknowledge that the First Respondent provided detailed submissions in relation to each and every ground. I do not think it is necessary to recite those contentions in further detail, having ultimately rejected the grounds for the reasons stated.
Before the court, the Applicant, quite appropriately, and perhaps not surprisingly, referred to the fact that he had been in this country for 11 years and does fear returning to Sri Lanka, having regard to the current circumstances in that country. However, that expressed fear and comment about the current circumstances in Sri Lanka does not of itself provide any or any proper basis upon which this court is able to conclude that the Tribunal in its decision has made an error of a kind which would permit the court to interfere.
Conclusion
In my view, there is no jurisdictional error arising from any of the grounds relied upon by the Applicant. It follows that the application should be dismissed, with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 21 November 2007
0
0
1