MZXSV v Minister for Immigration
[2008] FMCA 491
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXSV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 491 |
| MIGRATION – Refugee Review Tribunal – whether the Tribunal failed to consider a claim – claim not made – application dismissed. |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 SZJSS v Minister for Immigration [2007] FMCA 1495 |
| Applicant: | MZXSV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1349 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 15 April 2008 |
| Date of Last Submission: | 15 April 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | John A. Gibson |
| Solicitors for the Applicant: | Goz Chambers |
| Counsel for the Respondents: | Peter R D Gray |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 4 October 2007 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1349 of 2007
| MZXSV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal. The applicant is a citizen of Sri Lanka who was born in 1967. He claimed to be a full time journalist and part time systems analyst. He said the Independent Journalist Movement was formed after a public revolt in 1993. It was pro-People’s Alliance. It reported on government corruption and atrocities. The People’s Alliance won the election in August 1994.
The applicant claimed that he subsequently reported on atrocities and crimes committed by the government despite being requested by politicians not to do so. The applicant claimed that on 11 May 1996 he was dragged at gunpoint from a bus by people posing as plain clothed police officers. They abandoned the applicant at a beach. The applicant claimed that he continued to write articles about war crimes and corruption and received constant death threats. He claimed that the government targeted all independent journalists and deployed underworld gangs to eliminate them.
The applicant arrived in Australia on 10 May 1999. He applied for a protection visa on 4 June 1999. His application was refused on
31 October 2000. The refusal has been affirmed by the Tribunal on three occasions. The first two decisions of the Tribunal were set aside on review. This application concerns the Tribunal’s third decision.
The Tribunal’s third decision
The Tribunal did not accept that the applicant was a published journalist in Sri Lanka. The Tribunal considered that the applicant did not provide a persuasive explanation for not having brought examples of his work with him from Sri Lanka. The Tribunal was sceptical about the applicant’s claim that copies of articles allegedly written by him and allegedly posted to him in Australia by his friends in Sri Lanka were lost in the mail.
The applicant eventually submitted two articles published under his name. However, he conceded that there was another person in Sri Lanka who published articles under that name. The applicant had told the Tribunal that he wrote under a pseudonym. The Tribunal was not satisfied that the articles submitted by the applicant that were published under his name were in fact written by the applicant.
The Tribunal also noted that the applicant did not submit a diploma or any other record indicating he had studied journalism and did not satisfactorily explain his failure to produce such documents.
The Tribunal apparently accepted that the applicant had a card which states that he is a regional reporter for a particular publisher. However, the Tribunal considered that the card carried little weight as evidence that the applicant actually wrote any articles for the relevant publisher.
The Tribunal was not satisfied that the applicant had any connection with persecuted journalists or that he was abducted, threatened or assaulted. The Tribunal did not accept that the applicant was the enemy of any politicians and did not accept that the applicant faced a real chance of harm as a result of any connection he may have had with a particular publisher in 1993. The Tribunal was not satisfied that the applicant faced a real chance of persecution for any Convention reason.
The grounds relied upon
The application filed on 4 October 2007 contained a number of grounds. However, all but one of the grounds were abandoned. The remaining ground is that the Tribunal failed to consider the applicant's claim that he was a member of the Independent Journalist Movement (“the IJM”). It was said that the IJM highlighted government atrocities and made them public through the media and public rallies. It was said that the claim was made in writing to the Department of Immigration. It was said that the Tribunal’s failure to consider the claim was critical to:
whether the persecution feared by the applicant was for the essential and significant reason of political support, opinion or member of a particular social group.
In his written contentions, the applicant clarified that the ground relied upon was that the Tribunal had failed to consider a claim that had not been expressly raised. That ground was that the applicant feared persecution by reason of his membership of a particular social group, namely, the IJM. The applicant said further that, because there was country information to the effect that there were risks to journalists as such, there was evidence of risk attaching to membership of the IJM.
Additionally, the applicant said that he had expressly claimed that the government in 1999 had targeted all the free and independent newspapers and journalists. It was also said that this claim was not considered.
The foundation for the claim
The applicant said the following in a written statement accompanying his protection visa application:
In 1993, due to the horror, crime, denial of human rights and political revenge the kandy (sic) public revolted against the incumbent government and conducted protest rallies, strikes and public resentment. As journalists we formed the Independent Journalist Movement and highlighted the Government atrocities, horror, crime and corruption and made them public through the printed media, public rallies and seminars. … Our IJM decided to support the Peoples Alliance at the General Elections. This decision of the IJM necessitated almost all the journalists being involved full time in the election campaign. This was a great set back to the incumbent government and therefore there was a tremendous threat for us from them. The Peoples Alliance which was successful at the general elections in their election manifesto guaranteed that once they came to power, they will put an end to horror, crime, denial of human rights and political revenge and corruption. They undertook to ensure media freedom and safeguard journalist. On this undertaking we worked for the Peoples Alliance. They came to power in 1994.
Mr Dharnasiri Senanayake was appointed the Minister in Charge of the media. Soon it was evident that the Government was breaching the promises made in the election manifesto. Once again it was my duty by my country to educate the general public on the wrong doings of the new government. They included the atrocities and crimes taking place under the cover of the Civil War going on in the country, killing of unarmed civilians, elimination of political opponents deploying underworld thugs by the ministers. My friends in the Army and those holding key positions in the government service supplied me with the information on these incidents. By this time some of the pro-government politicians with whom I worked for the election requested me not to write about incidents detrimental to the government and place the government in a difficult situation. I could not agree with them and I continued to report on the atrocities, crime, embezzlement of public funds, political revenge, government tenders to cronies, bribery and corruption by the government ministers, politicians and bureaucrats. Therefore I had to face harassment and threats. I had to be pseudonymous. But my chief editor new (sic) that I was the person writing under the pseudonymous name.
Asia Capital Ltd with whom I worked as a part time System Analyst is a leading Stock Broker Enterprise in Sir (sic) Lanka. I came to know leading businessmen, capitalists and VIP’s who supplied me with valuable information about the Government corruption together with evidence enabling me to highlight them in the media.
On 11 May 1996 … people posing as police officers [threatened] to kill me … if I continue to criticizes the Government and the Ministers and Members of Parliament. …
The government prepared for the North-West Provincial Council elections in January 1999. During the pre election period I wrote to the leading News Papers and highlighted areas where the Government Ministers committed election frauds, threatened the public, issued death threats to opponents and of preparations to cast fake votes. The voice of the print media which identified the election as a fraud put the Government into an inconvenience situation. This situation affected the other provincial council elections. In some provincial councils the Government could not get the majority required to form the governing body. The Government identified the main cause of their demise as the News paper reports. Therefore the Government targeted all the free and independent News Papers and Journalists. This action had the blessings of the State President. This resulted in the Underworld gangs being deployed to eliminate targeted Journalists like me.
The applicant also provided to the Tribunal a copy of a letter dated
1 September 2001from an Attorney at Law, Nishan Sumanadeera. The letter said, among other things, that:
This is to inform and give evidence that [the applicant] underwent severe mental/physical stress due to continuous threats for his life, as a result of his involvement as Reporter/Journalist of a leading News Paper and member of the free media movement in Sri Lanka.
The Tribunal set out country information in the following terms:
The International Federation of Journalists (IFJ) is disturbed by Sri Lankan journalists’ continued suffering at the hands of authorities, after two journalists were detained by the military and police assaulted a photojournalist, while another journalist remains in detention under anti-terrorist legislation … According to an IFJ affiliate, the Free Media Movement (FMM), two journalists from the weekly Sathdina Sinhala… were taken into custody on 5 November [2006] by military personnel, while meeting with union leaders of Sri Lanka Telecom HQ, which is situated in a high security zone. …
Reporters Without Borders has condemned the campaign of harassment by Sri Lankan security forces in a bid to force Tamil journalists into self-censorship, since the resumption of conflict between the army and Tamil Tigers (LTTE) rebels. Scores of Tamil journalists have been forced into hiding or silence since then and for fear of reprisals, most correspondents for Tamil media in the east of the country no longer by-line their articles … The organisation considers Sri Lanka to be one of the world's most dangerous countries for journalists. …
… The International [Press Freedom and Freedom of Expression] Mission found that there has been a serious deterioration in the security situation for the Sri Lankan media with threats, abductions and attacks committed by all parties in the conflict, and particularly paramilitary and militia groups. Eight media workers have been killed since August 2005 ….
Consideration
The first question is whether the Tribunal erred in failing to find that the applicant had claimed to be a member of the IJM. The Tribunal said at page 13 of its reasons for decision, in its summary of the claims, that the applicant had gone to IJM meetings but was not a member.
The applicant did not expressly claim in his written material to have been a member of the IJM. He only said that, “As journalists we formed” the IJM. He did not expressly claim that he was personally involved in the formation of the IJM.
At the hearing before the Tribunal on 18 May 2007, the following exchange occurred:
TRIBUNAL: Now, were you ever a member of any journalist union, or association?
INTERPRETER: There was a small union called (indistinct) and I participated at the meetings. Whenever they organised activities I used to take part.
TRIBUNAL: What was it called?
INTERPRETER: It was (indistinct)
TRIBUNAL: Which means what?
INTERPRETER: Independent Journalist Association – it’s Independent Journalist Association.
When asked directly whether he was a member of any journalists’ association, the applicant did not expressly claim to be a member.
He said he had participated at the meetings of the IJM and attended the IJM’s activities. It may be that a person who frequently participates in the meetings of an organisation would, in the usual case, be a member of that organisation. However, when asked a direct question, which required a simple yes or no answer, the applicant failed to say that he was a member. In these circumstances, the Tribunal’s conclusion that the applicant was not a member of the IJM was open on the evidence and did not constitute a misunderstanding of the claims that were actually made by the applicant.
Counsel for the applicant submitted to this court that it did not really matter whether the applicant was a member of the IJM or not. The essential point was that the applicant claimed to be a supporter and member of a movement.
However, the applicant did not claim that, without more, membership of the IJM or support for the IJM or participation in IJM activities might lead to persecution. His claim was that journalists who published articles critical of the government would be persecuted. There was nothing in the material to suggest that a member or supporter of the IJM, or a participant in its activities, who did not publish articles critical of the government, might face persecution. Indeed, there was no evidence that the IJM continued to exist after the 1994 elections.
There was country information to the effect that some journalists were at risk of persecution. The journalists at risk included those who met union leaders in a high security zone and those who had covered the Tamil separatist conflict. There was material indicating that Tamil journalists had been forced into silence, and that there had been numerous threats, assaults and killings of media workers.
However, none of the country information indicated that having a card indicating that a person was a journalist for a particular newspaper, without actually publishing any articles critical of the government or touching on sensitive topics, would place a person at risk.
The letter written by Nishan Sumanadeera (“the letter”) claimed that the applicant:
underwent severe mental/physical stress due to continuous threats for his life, as a result of his involvement as Reporter/Journalist of a leading News Paper and member of the free media movement in Sri Lanka.
The country information verifies the existence in Sri Lanka of an entity known as the Free Media Movement (“FMM”). The letter claims that the applicant was at risk because he was both a journalist and a member of the FMM. It is implicit in the letter that it was claimed that the applicant was an active, published journalist. That claim was rejected by the Tribunal. The letter does not amount to a claim that a person who was a member of the FMM but who did not publish articles critical of the government might be at risk of persecution.
In any event, the applicant himself did not expressly claim to be a member of the FMM. Counsel was asked about this issue at the hearing before this court. The exchange was as follows:
THE COURT: Sorry, are you saying something described as the free media movement is the same thing as Independent Journalist Movement?
COUNSEL: No. This is - and again the respondent quite properly draws the court's attention to that. There is in the country information - if I could just take your Honour to it - at 158 there is, taken from the UK Home Office Reports of Conditions in Sri Lanka, under the heading Freedom of Speech in Media over the page at 158, under the heading Country Information, the body of the reasons, there's a reference in capitals to - this is in the sixth line on page 158, reference to the IFJ which is the International Federation of Journalists, and there's a reference to what in that report is styled the Free Media Movement, otherwise known as FMM. Then there's a further reference and another extract halfway down the page.
THE COURT: Yes. So you're not saying that is the same thing as the IJM?
COUNSEL: Your Honour, I suppose what we're saying is that in terms of the letter that was put as Free Media Movement, the inference would be drawn that it was referring to this other association or movement that he claimed to have been a member of and participated in.
THE COURT: The IJM.
COUNSEL: The IJM, yes.
THE COURT: So you say the reference in the letter to the FMM should be read as a reference to the IJM.
COUNSEL: Yes, but in any event, what it does is it provides - I mean, it's obviously for the tribunal if it had given consideration to this issue to, as it were, extract either from its own researches or from country information, and make some sort of determination about the issue, and if it be the case that the FMM which on one view would seem to be the case which is a different creature, nonetheless what we say is the issue was a live issue. It was before the tribunal, and that letter from the solicitor or lawyer simply maintained that issue; that it was still, as it were, a live one.
I do not accept that the reference in the letter to the FMM can be read as a reference to the IJM. There is nothing to suggest that they were the same organisation. At most, the letter amounted to a claim that the applicant, as both a member of the FMM and a journalist who published articles critical of the government, faced persecution.
The letter did not amount to a claim that a person who was a member of the FMM but who did not publish articles critical of the government would be at risk.
Accordingly, I do not accept that there was an express or implied claim that mere membership of the IJM or the FMM or any more generalised independent media movement, would of itself place at risk a person who had not published any articles critical of the government.
The matter of SZJSS v Minister for Immigration [2007] FMCA 1495 was referred to in submissions. That case stands for the proposition that a claim is not abandoned simply because an applicant does not repeat it at the end of the process when the Tribunal asks why the applicant fears persecution. That proposition, with respect, is undoubtedly correct. However, a failure to refer to a particular claim in answer to the Tribunal’s final question may reinforce a conclusion that the claim was never made in the first place.
In the present case, when asked why he feared persecution, the applicant said, at page 12 of the transcript of the Tribunal proceedings, that there was a possibility he would be killed because his final articles were about corrupt practices and he demolished someone’s character by publishing certain articles. In my view, these answers reinforce the conclusion that the applicant’s claims were based on the risk to those people who published articles critical of the government, rather than those who may have been members of a movement or organisation but who did not publish articles critical of the government.
The material before the Tribunal did not indicate that there was a real chance that a person who was a member of an independent media movement, but who did not publish articles critical of the government, faced persecution. The material before the Tribunal indicating that journalists faced persecution concerned journalists who were active, published journalists who criticised the government, rather than people who had never published any media articles at all.
In terms of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, there was not an unarticulated claim raised squarely on the materials that a person who was a member of a journalists’ movement but who had never published an article critical of the government might be at risk of persecution.
In any event, the Tribunal found that the applicant was not an enemy of the government. This, in effect, was a finding of greater generality that subsumed any inchoate claim that the applicant was at risk because of his membership of a movement that opposed the government.
Accordingly, the application must be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Catherine Wilson
Date: 27 June 2008