MZYAV v Minister for Immigration and Citizenship

[2009] FCA 414

FEDERAL COURT OF AUSTRALIA

MZYAV v Minister for Immigration & Citizenship [2009] FCA 414

Migration Act 1958 (Cth), ss 5(1), 36, 424A

Convention relating to the Status of Refugees done at Geneva on 28 July 1951
Protocol relating to the Status of Refugees done at New York on 31 January 1967

MZYAV v Minister for Immigration and Anor [2008] FMCA 1728 affirmed

MZYAV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 2 of 2009

GRAY J
3 MARCH 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 2 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZYAV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE OF ORDER:	3 MARCH 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the first respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 2 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZYAV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE:	3 MARCH 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This appeal is from a judgment of the Federal Magistrates Court, given on 15 December 2008 and published as MZYAV v Minister for Immigration and Anor [2008] FMCA 1728. The learned federal magistrate dismissed an application seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”), the second respondent to the appeal. The Tribunal dismissed an application for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”), the first respondent to the appeal, refusing to grant to the appellant a protection visa.

2. The appellant is a citizen of Sri Lanka.  He arrived in Australia on 23 September 2007.  On 2 November 2007 he applied for a protection visa.  The decision of the Minister’s delegate was given on 14 January 2008.  The appellant then applied to the Tribunal for review of the decision of the Minister’s delegate.  On 18 March 2008, the Tribunal conducted a hearing at which the appellant attended and was represented by a migration agent.  The Tribunal’s decision was signed on 7 May 2008 and handed down or sent to the appellant on 21 May 2008.  The appellant applied to the Federal Magistrates Court on 6 June 2008.  He filed an amended application on 21 July 2008.  His application was listed for hearing on 13 November 2008 but was adjourned until 15 December 2008 to enable the appellant to consider his case and seek legal advice.  He appeared without representation at the hearing on 15 December 2008.  The federal magistrate dismissed the appellant’s application and ordered that he pay the Minister’s costs, fixed at $5,000.

3. By s 36 of the Migration Act 1958 (Cth) (“the Migration Act”), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms “Refugees Convention” and “Refugees Protocol” are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  It is convenient to call these two documents, taken together, the “Convention”.  For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country

4. The appellant claimed that he had a well-founded fear of being persecuted, if he should return to Sri Lanka, for the reason of his political opinion.  He claimed that he was a member of, and active campaigner for, the United National Party (“UNP”) and that he feared harm at the hands of members and supporters of the People’s Alliance (“PA”), which was in Government in Sri Lanka.

5. In his application for a protection visa, the appellant gave very detailed accounts of a number of incidents in which he said he had suffered injury through violence inflicted. His house had been damaged and threats of violence had been made to him by people who were PA members or supporters. In his evidence given at the Tribunal hearing, the appellant also gave detailed accounts of these incidents. The Tribunal identified substantial discrepancies between the earlier accounts and the accounts given in evidence to it in relation to a number of these incidents. Accordingly, by letter dated 3 April 2008, sent pursuant to s 424A of the Migration Act, the Tribunal set out the discrepancies it identified and invited the appellant to comment on those discrepancies. The appellant did respond to this letter by letter dated 21 April 2008, attempting to explain the discrepancies and to persuade the Tribunal that it ought to accept his accounts of the incidents. The Tribunal was not persuaded. It made findings adverse to the credibility of the appellant in relation to a number of the incidents. Those findings were based on the discrepancies between the two accounts, which, in the Tribunal’s view, were not explained adequately.

6. The Tribunal accepted that the appellant was a UNP supporter, that there is politically motivated violence in Sri Lanka, and that the appellant had, on occasions, suffered injuries.  It did not accept that those injuries had been inflicted for political reasons or by members or supporters of the PA.  It did not accept that some incidents described by the appellant had occurred, that damage to his house was inflicted by PA supporters by reason of his political affiliations, or that threats had been made to the appellant by or on behalf of PA supporters.  Accordingly, the Tribunal found that the appellant did not have a well-founded fear of persecution for the reason of his political opinion if he should return to Sri Lanka.

7. The appellant’s original application to the Federal Magistrates Court was obviously made with some legal assistance, although the appellant did not have any lawyer representing him.  The grounds set out raised a range of allegations of what might have amounted to jurisdictional error on the part of the Tribunal, if those grounds had been made out.  The problem was there was no particularisation of those grounds, either in the application itself or in an accompanying affidavit.  In the amended application, the appellant added substantial particulars of the allegations of jurisdictional error which he attempted to substantiate by means of a further affidavit.  All of the particulars that he included in the amended application involved allegations that the Tribunal was mistaken as to the facts and ought to have accepted what the appellant had told it.

8. In her reasons for judgment, the federal magistrate considered all of the grounds set forth in the amended application.  Her Honour rejected the suggestion that there was a failure by the Tribunal to understand the meaning of persecution or to apply the correct test.  Her Honour pointed out that the Federal Magistrates Court was unable to undertake merits review and therefore could not overturn the Tribunal’s conclusion about the appellant’s credibility.  Her Honour pointed out that the Tribunal did not consider that the appellant was likely to suffer any persecution, and therefore was not called upon to determine whether any persecution would have had an official quality or whether any harm threatened would have been motivated by reason of the appellant’s political opinion.

9. Her Honour also said that, during the hearing on 15 December 2008, the appellant had raised the allegation that the Tribunal had prejudged his case.  That matter was not raised in the amended application.  The federal magistrate stood down the hearing for some time to enable the appellant to formulate his thoughts on that issue and to identify the relevant material.  Despite this, the appellant was unable to point to anything that indicated that the Tribunal had prejudged the matter.  As the federal magistrate pointed out, the Tribunal’s reasons for decision are long and detailed.  The Tribunal had sent the letter to the appellant, seeking his response to its view of inconsistencies between his different accounts of his claims.  Her Honour concluded that there was nothing before the court that would substantiate the claim that the Tribunal had prejudged the matter.

10. It is clear from her Honour’s reasons for judgment that the appellant had difficulty understanding that the Federal Magistrates Court could not simply overturn the Tribunal’s decision on the basis that the Tribunal had reached wrong conclusions about facts.  Her Honour concluded that the appellant had not identified any jurisdictional error in relation to the Tribunal’s decision.

11. The notice of appeal filed in this Court identified three grounds.  The first was that the federal magistrate’s judgment was attended by error of law.  The second was that “The federal magistrate failed to consider my case in accordance with the refugee law and breach of natural justice”.  The third ground was that the federal magistrate was biased.  The notice of appeal was accompanied by an affidavit, which restated those grounds and added that the federal magistrate had failed to consider the situation in Sri Lanka for people who were highly involved in politics and faced death threats and execution for political involvement.  In the affidavit, the appellant also asked that the Court set aside the decision of the federal magistrate and return the case to the Tribunal for reconsideration.

12. In attempting to argue his appeal through an interpreter today, the appellant has again tried to persuade me that the Tribunal reached wrong conclusions about a number of issues of fact.  I have attempted to explain to him the distinction between jurisdictional error and error within jurisdiction.  It is not the function of this Court, and not the function of the Federal Magistrates Court, to examine the factual conclusions of the Tribunal and to determine that those factual conclusions are wrong.  The opportunity for the appellant to persuade any decision-maker of the factual correctness of his claims was in the Tribunal.  If the Tribunal reached wrong conclusions about the facts, and I am not to be taken as saying that it did or did not, neither the Federal Magistrates Court nor this Court can take any action in relation to those conclusions.  Only if the Tribunal’s process was wrong, or it failed to exercise its statutory function, can the Court intervene.

13. If the appellant was to succeed in his appeal, he would have to show that the federal magistrate was in error.  He could only show that her Honour was in error by demonstrating that she ought to have found jurisdictional error on the part of the Tribunal and failed to do so.  The appellant has wholly failed to achieve that task.

14. The allegation in the notice of appeal, that the federal magistrate was biased, is a serious one.  I indicated to the appellant that I suspected that, when he claimed that the federal magistrate had told him he could not talk about the Tribunal decision, her Honour was merely attempting to explain to him that the court could not correct any errors of fact on the part of the Tribunal.  The fact that the federal magistrate adjourned the hearing of the appellant’s amended application from 13 November to 15 December 2008, in order to give the appellant an opportunity to prepare his case and seek legal advice, is inconsistent with any notion that the federal magistrate had prejudged the appellant’s case.  The fact that the federal magistrate was prepared to stand down the hearing, to give the appellant an opportunity to formulate his argument to the effect that the Tribunal had prejudged his case, and to locate any material on which he wished to rely, is also inconsistent with the notion of the court having prejudged any issue.  On the basis of my discussions with the appellant, I am satisfied that the federal magistrate certainly had not prejudged the issue, but was attempting to explain to the appellant that he could not succeed by simply demonstrating that the Tribunal was wrong.

15. The appellant has not identified any error of law on the part of the federal magistrate, any failure to apply the law relating to refugees correctly, or any breach of the principles of natural justice.  He has not been able to demonstrate any jurisdictional error on the part of the Tribunal or any error on the part of the federal magistrate.  I have examined carefully the reasons for decision of the Tribunal and the reasons for judgment of the federal magistrate.  I am unable to identify any error on the part of the federal magistrate or any jurisdictional error on the part of the Tribunal.

16. The appellant has submitted that he would be able to convince the Tribunal of the correctness of his claims if he were to be given another chance to be heard by the Tribunal.  I have endeavoured to explain to him that the Court cannot simply allow him to have another hearing before the Tribunal, simply because he says that his claims are true and his cause is just.  He could only ever overturn the decision of the Tribunal and have his case remitted to it if he could establish jurisdictional error on the part of the Tribunal.

17. For these reasons, the appellant’s appeal must be dismissed.

18. Counsel for the Minister has sought an order that the appellant pay the Minister’s costs of the appeal.  Such an order would accord with the normal principle that costs follow the event.  The appellant says that I should not apply that normal principle because he does not have the funds to meet an order for costs and because he believes that the justice of the case is on his side and he ought not to have lost the appeal.  Neither of these constitutes a good reason for declining to make the usual order.  The appellant will therefore be ordered to pay the Minister’s costs of the appeal.

19. The Court orders that:

    1.        The appeal be dismissed.

    2.        The appellant pay the first respondent’s costs of the appeal.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:
Dated:        27 April 2009

The appellant appeared in person
Counsel for the respondents:	Ms E Latif
Solicitor for the respondents:	DLA Phillips Fox

Date of Hearing:	3 March 2009
Date of Judgment:	3 March 2009