MZYAV v Minister for Immigration
[2008] FMCA 1728
•15 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYAV v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1728 |
| MIGRATION – Refugee Review Tribunal – whether the Tribunal misunderstood the meaning of persecution – whether the Tribunal failed to consider the effect of the facts as found – whether the Tribunal prejudged the matter – application dismissed. |
| Migration Act 1958, ss.91R(2), 424A |
| Applicant: | MZYAV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 709 of 2008 |
| Judgment of: | Riley FM |
| Hearing date: | 15 December 2008 |
| Date of Last Submission: | 15 December 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 15 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Advocate for the First Respondent: | Mr Bryan Wee |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application filed on 23 July 2008 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 709 of 2008
| MZYAV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal. The applicant lodged a protection visa application on 2 November 2007. That application was refused by the delegate and then by the Tribunal.
The applicant claimed that he was a 47-year-old Sinhalese citizen of Sri Lanka. He claimed he was a strong and active member of the UNP and was persecuted by PA supporters and the PA government. The Tribunal did not accept the bulk of the applicant’s claims. The Tribunal noted numerous inconsistencies and contradictions in the applicant’s claims. The Tribunal did not accept that the applicant was a member of the UNP or that he had been harmed by reason of his political opinion. However, the Tribunal did accept that the applicant was a supporter of the UNP and that the applicant’s hand had been cut. The Tribunal considered that the applicant’s hand was cut by an unknown person for unknown reasons. On the basis of its findings, the Tribunal did not accept that the applicant faced a real chance of persecution.
The applicant raised a number of grounds in his amended application that was filed on 21 July 2008. The first ground was that the Tribunal misunderstood the meaning of “persecution” in the Convention and pursuant to s.91R(2) of the Migration Act 1958 (“the Act”) and, in particular, misunderstood the meaning of “serious harm” in finding that the harm the applicant experienced in the past did not amount to serious harm.
The applicant filed contentions of fact and law which substantially repeated the matters set out in the amended application. The Tribunal considered that the applicant had not experienced any harm, except for his cut hand. The Tribunal considered that the applicant’s hand was cut by unknown persons for unknown reasons. The Tribunal did not accept that the cut on the applicant’s hand was the result of persecution for Convention reasons. In the circumstances, I am not satisfied that the Tribunal misunderstood the meaning of persecution or the meaning of serious harm.
The second ground raised by the applicant is that the Tribunal failed to consider whether the facts it found led to the conclusion that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal found only that the applicant was a supporter of the UNP and had suffered a cut on his hand for unknown reasons. The Tribunal considered that the cut was not for Convention reasons. The Tribunal considered that the applicant would not face a real chance of persecution, merely for reason of his support of the UNP. I consider that the Tribunal did consider the facts as found and applied the law to them.
In particulars given under ground two of the amended application, the applicant challenges many of the Tribunal’s findings of fact. However, the court is unable to undertake merits review. The Tribunal was entitled to reject the applicant’s account on the basis of inconsistencies in it. Credibility is a matter for the Tribunal to determine.
The third ground stated by the applicant is that the Tribunal misunderstood what follows from its finding that the persecution did not have an official quality. However, the Tribunal did not consider that there was not any persecution at all. Accordingly, the question of whether any persecution had an official quality did not arise.
The fourth ground raised by the applicant was that the Tribunal failed to consider whether the motive for the harm threatened to him was because of a political opinion held or imputed to him. However, the Tribunal did not accept that the applicant faced any threat of harm. Accordingly, there was no failure to consider a relevant matter.
During the hearing before this court, the applicant said that the Tribunal had prejudged the matter. The matter was stood down for some time to enable the applicant to formulate his thoughts on that issue and identify the relevant material. However, the applicant was unable to point to anything that indicated that the Tribunal had prejudged the matter.
The Tribunal’s decision is quite long and detailed. The Tribunal sent the applicant a s.424A letter highlighting the various inconsistencies in the applicant’s claims. The Tribunal received the response to that letter and appears to have taken the response into account. The response is dealt with at paragraph 45 and following of the Tribunal’s decision.
In these circumstances, I do not consider that there is anything before the court that would substantiate the claim that the Tribunal had prejudged the matter.
In argument before this court, the applicant sought to restate the facts of the case and said that the Tribunal had made a number of errors of fact. The applicant challenged the Tribunal’s treatment of hospital reports because they gave a different age for the applicant to his actual age. The applicant also said that the police reports had failed to mention that he was a member of the UNP. These matters go to the merits of the claim. The Tribunal was entitled to consider that the various inconsistencies that it identified in the applicant’s account made that account not credible.
All in all, I am not persuaded that the applicant has identified any jurisdictional error in the Tribunal’s decision. Accordingly, the application must be dismissed.
I will order that the applicant pay the first respondent’s costs fixed in the sum of $5,000.00 in accordance with the court scale. I do not propose to order the extra $500.00 sought by the first respondent because I consider that the adjournment on the last occasion was at least in part because the first respondent’s written submissions had been provided to the applicant only shortly before the scheduled hearing. In the circumstances, I consider that it is appropriate that the applicant pay only the amount fixed in the scale.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Catherine Wilson
Date: 8 January 2009
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