MZXRN v Minister for Immigration
[2008] FMCA 729
•14 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXRN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 729 |
| MIGRATION – Visa – protection visa – review of Refugee Review Tribunal decision. |
| Migration Act 1958 (Cth), s.424A |
| Applicant: | MZXRN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 934 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 14 April 2008 |
| Date of Last Submission: | 14 April 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 14 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr W.S. Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 6 July 2007 is dismissed.
The Applicant do pay the Respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 934 of 2007
| MZXRN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal made on 30 May 2007.
The applicant first received a temporary travel visa to travel to Australia from Sri Lanka in February 2006, came to Australia on 25 July 2006, and thereafter on 8 September 2006 applied for a protection visa. The Minister's delegate rejected his application for a protection visa on 13 November of that year, following which he applied to the Tribunal for a review of that decision.
On 8 June 2007 the Tribunal affirmed the decision of the delegate. The applicant then applied on 7 July 2007 in this court for judicial review of the decision of the Tribunal (the Tribunal decision was signed on 30 May but delivered to the applicant on the later date).
The applicant's claims before the delegate and the Tribunal surrounded on the proposition that he was a member of the UNP political party and being persecuted as a result of that. He said that his persecution involved not only threats but also assaults.
The Tribunal accepted that there was political conflict in Sri Lanka and problems of the type described by the applicant were recounted in country information. However, the Tribunal did not accept that the applicant was reliable or credible in the evidence that he gave and it rejected his evidence.
The Tribunal noted a large variety of inconsistencies, such as: an apparent attempt by him to conceal his past migration history, a comment apparently made to a psychologist that he did not wish to stay in Australia, inconsistencies between police reports that had been obtained and the evidence given by the applicant, and his delay in departing Sri Lanka between the date that he received the travel visa and his actual date of travel to Australia. The Tribunal member sets out these various matters at pp.40 to 46 of the decision.
GROUNDS
The applicant's grounds for judicial review are not clearly or precisely stated. In his written submissions, which state that they replace his original application, there appear to be four grounds, as identified by counsel for the Minister. It appears to me that it is appropriate to also deal with what was the ground in the original application, which in these reasons will appear as ground 5.
Ground 1
The first ground that can be discerned from the written submissions of the applicant was a claim that he did not receive procedural fairness, because he wished to be able to comment upon the country information that was relied upon by the Tribunal member in coming to the decision.
The information would not be properly the subject of a s.424A notice, given the exclusions contained within that provision. It appears clear from the cases that there is no general obligation upon the Tribunal to provide such country information to an applicant.
In this case, however, it is apparent from p.17 of the decision of the Tribunal that it discussed the country information, or at least the relevant parts of it, with the applicant during the course of the hearing.
At p.40 of the decision the Tribunal member recounts responses from the applicant, and, most notably, uses the country information not against the applicant but to recognise that the accounts given by the applicant would be consistent with the types of events that have happened in Sri Lanka in the past in accordance with country information.
It appears to me that it cannot be suggested that the applicant was not given a reasonable opportunity to respond to the country information, given that the substance of it was raised with him at the hearing, and, in any event, the Tribunal has not used this information to harm his case, has not used it as being directly inconsistent with what the applicant has alleged; but, rather, at the end of its reasoning process, the Tribunal has recognised that the cases put by the applicant appeared to be in the nature of the events that have been described in country information.
I therefore find that this ground does not form a basis for judicial review.
Ground 2
The second ground is that the applicant was unaware that his medical information was in issue, or at least that the medical reports he provided were not necessarily accepted.
At pp.17 to 18 of the decision it is apparent that the Tribunal raised questions about the applicant's claims for medical treatment with him during the course of the hearing and also asked whether the applicant could obtain any medical evidence of the injuries he said he had suffered.
Subsequently, the applicant provided four medical reports to the Tribunal, which the Tribunal clearly considered. Whilst these reports were provided by the applicant and therefore did not need to be the subject of a notice under s.424A (see s.424A(3)(b)), the Tribunal nonetheless included this information and its concerns set out in a s.424A letter dated 24 April 2007. The relevant passages appear at pp.24 to 25 of the decision of the Tribunal.
This was responded to in writing by the applicant on 8 May 2007 and the relevant passages of this response appear at pp.28 to 29 of the Tribunal's decision.
Not only has the Tribunal set out extensively the s.424A concerns that it held and the response, it has also gone on to specifically consider this evidence in its findings and reasons, at pp.42 to 43.
In the circumstances, it does not appear to me that there has been any jurisdictional error by the Tribunal with respect to the medical evidence in this case.
Ground 3
The third ground relates to the use made by the Tribunal of the delay in the applicant leaving Sri Lanka, from when he had a visa to the date that he actually left.
This was clearly put to the applicant in the hearing, as is recorded at p.17 of the Tribunal decision.
The applicant's attention was drawn to this issue in a s.424A notice, the relevant passages of which appear at p.26 of the decision.
The Tribunal received a response in writing, the relevant passages of which are set out at p.30 of the decision.
The Tribunal analysed this evidence in its findings, at p.44 of its decision.
In these circumstances, I am not persuaded that the applicant has demonstrated any jurisdictional error with respect to this issue.
Ground 4
The fourth ground to be drawn from the material is on the basis that the Tribunal considered threats to the applicant as separate issues from the claimed assaults upon the applicant.
It appears, from the decision, that the Tribunal, early on, rejected the applicant's claim to have been assaulted as a result of their inconsistency with police reports that he had made (copies of which had been provided). It treated the threats more extensively as they were contained within police reports made by the applicant.
Ultimately, the Tribunal rejected entirely the applicant's evidence about threats and about assaults. It is clear that, if the Tribunal had accepted either that the threats had occurred or that the assaults had occurred on their own, each of those issues may have formed the basis for the tribunal to then need to consider whether the applicant was at real risk of persecution in the future.
Had the Tribunal accepted both matters, it would have needed to consider that evidence in its entirety - that is, the matters together - in order to assess the proper weight to be attached to the applicant's fear for the future.
In a case where both are clearly addressed in their own evidentiary context and both are ultimately rejected, I see no error on the part of the Tribunal in not attempting to analyse them, together or as one item.
I therefore find that this ground does not provide a basis for jurisdictional error.
Ground 5
This ground appears to be encompassed by the original claim in the application filed with the court. The basis of this appears to be that the Tribunal accepted some of the evidence of the applicant, such as his membership of the UNP. However, it went on to reject important aspects of his evidence, from the perspective of his claim before the Tribunal.
The applicant quotes, quite out of context, a line of the Tribunal's reasons, where the Tribunal states:
In some respects, the applicant's evidence appeared consistent and plausible.
This line appears in the context of a number of paragraphs explaining why it is that the Tribunal ultimately rejected the applicant's evidence.
It appears to me that when read in context the line shows no more than that the Tribunal member was acknowledging the potentially‑positive aspects of the applicant's case and explaining why evidence which may superficially have appeared consistent and plausible, was not in fact to be accepted by the Tribunal member but indeed wholly rejected.
It appears to me that this line when read in context shows that the Tribunal member gave serious and real consideration to what might be considered the matters that may have weighed in the applicant's favour when assessing his credibility, as against the other matters, before ultimately making a decision.
It would be inappropriate to be critical of a Tribunal member who is properly identifying all of the matters that must necessarily go into the melting pot of fact‑finding in decisions about whether or not to accept or reject a witness.
Indeed, if the Tribunal had not recounted any significant factors that may have weighed in the applicant's favour, there would no doubt have been arguments that the Tribunal had failed to consider relevant material in making the decision that it did.
In the circumstances of the case, I do not find that this shows a jurisdictional error.
ISSUES RAISED IN REPLY
I note that in response to the minister's submissions the applicant made a number of comments concerning the veracity of the police; the difficulty that his family would have had in Sri Lanka, had he left quickly, without him there to support them and in the absence of a social security system of the nature that benefits Australians; and also the difficulties in obtaining medical treatment as a result of conduct of the police. All of these matters are factual matters which could have been and may well have been raised before the Tribunal, bearing upon whether or not it accepted or rejected the applicant's evidence.
It is not for me in judicial review proceedings to revisit questions of fact before the Tribunal. In the circumstances, these matters do not form a basis upon which, as a matter of law, a jurisdictional error can be shown in this court.
In the circumstances, I therefore have no choice but to refuse the applicant's application for judicial review.
FIRST RESPONDENT'S COSTS
In the matter of costs by the Minister against the applicant, the application has brought judicial review proceedings and been wholly unsuccessful. The applicant opposes costs on the basis that the Minister seeks $5000 and he does not have the funds to meet such an amount.
Costs should ordinarily follow the outcome in proceedings of this nature. That is, the successful party would ordinarily have their costs met by the unsuccessful party. The fact that the unsuccessful party may be impecunious or unable to reasonably meet the amount of costs involved is not of itself a sufficient reason to show that a costs order in the usual form should not be made.
The quantum of costs sought by the Minister in this case is that set out in the court scale. Given the nature of the proceedings, in this case it appears to me that that is a reasonable fee.
In the circumstances, I order that the applicant pay the first respondent's costs, fixed at $5,000.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Acting Associate: Robin Smith
Date: 3 June 2008
2
0
1