MZYBC v Minister for Immigration
[2008] FMCA 1567
•21 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYBC v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1567 |
| MIGRATION – RRT – Judicial Review – no matter of principle. |
| Migration Act 1958 (Cth), s.91R(2) |
| Applicant: | MZYBC |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 772 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 17 October 2008 |
| Date of Last Submission: | 17 October 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 21 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appearing in person |
| Counsel for the Respondents: | Ms Wee |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 772 of 2008
| MZYBC |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal made 3 June 2008. The applicant is a Sri Lankan citizen who arrived in Australia on 12 April 2007. After arriving she applied for a protection visa on 21 May 2007, which was refused by a delegate of the Minister on 10 July 2007. The applicant then sought review by the Refugee Review Tribunal on 16 August 2007, and following a hearing on 10 October 2007 the Tribunal made a decision on 1 May 2008 which was later handed down on 3 June 2008.
The applicant then sought review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court on 27 June 2008.
The applicant claims persecution from the supporters of the People’s Alliance (PA) political party as a result of her political opinion as a campaigner, supporter and contributor to the UNP party. She further claimed persecution as a member of a social group comprised of community activists that promoted women’s issues. The applicant claims that after the 2004 Sri Lankan election she was physically and verbally assaulted, including being hit in the eye by a mango causing injury, and received death threats and suffered damage to her home. These attacks were all said to have taken place not long after the 2004 elections.
In more recent times she says that telephone threats had been made to her after she moved to live with her sister in a nearby town and that ‘thugs from the Sri Lankan Freedom Party (SLFP) were still looking for her and making threats to her life because of her past work for the UNP’. The latter piece of information being conveyed to her by her husband, who remains in Sri Lanka.
Grounds
(a) Irrelevant factor – knowledge of portfolio of a UNP minister.
In this case the applicant argues the Tribunal took into account an irrelevant fact in considering the level of knowledge of the applicant with respect to politics in Sri Lanka. In particular that she was not able to name the portfolio that a particular candidate held and the party to which he later defected. In this case the applicant claimed a long history and lengthy involvement with the party. It appears to me to be reasonable for the Tribunal to enquire of her as to the level of her knowledge of the party and in particular those that she assisted to campaign for election. The Tribunal took into account that there is no requirement for a person claiming persecution to ‘be fully versed in the history of the political party they claim to belong to or support, or to have current knowledge of all successful candidates elected to parliament, or even to provide information regarding the most recent political events affecting their political cause.’
In this case the Tribunal concluded:
104. As a result, the Tribunal does not accept that a person who claims to have been as actively involved in women’s issues and UNP politics over the period of time and in the manner described by the applicant, would not know the underlying political principles to which the UNP adheres in formulating its policy views, or what role the political candidate she campaigned for had assumed in the current Sri Lankan government, or which political party he belonged to after his defection to the ruling coalition’s ranks. Nor does the Tribunal accept that the applicant, who claims to have had a close relationship with a UNP officer bearer and women’s advocate, and to have been involved in such activities, would not know whether the latter had been subjected to any persecution as a result of these activities. As a result, the Tribunal does not accept that there is a real chance that the applicant would be subjected to persecution on the basis of her membership of a particular social group, namely as a woman who is committed to community involvement and advocates women’s issues.
As a result, I am not persuaded that the applicant has demonstrated an error on the part of the Tribunal that goes to jurisdiction. It was not an irrelevant consideration, and the Tribunal took some care in determining the appropriate weight to attach to that consideration.
(b) That the Tribunal did not give adequate consideration to the applicant’s psychological state.
In this case the Tribunal considered the applicant’s psychological state, specifically discussing it at paragraphs 125 to 129 of their decision, recounting evidence from two qualified professionals who had examined the applicant, a general practitioner and a psychologist, and who had provided reports. In determining the weight to be placed upon her evidence the Tribunal specifically stated:
105. In considering the evidence before it the Tribunal has had regard to the relevant Tribunal guideline, “Guidance on the Assessment of Credibility”, which provides, at paragraph 4.3, that “a person may have had traumatic experiences or be suffering from a disorder or illness which may affect his or her ability to give evidence, his or her memory or ability to observe and recall specific events or details”. However, having regard to all the evidence before it, the Tribunal does not accept that the applicant’s psychological state, or general health at the time of the Tribunal hearing, adequately explains her lack of knowledge or apparent interest in these matters.
This ground seeks to pursue a merits review rather than a review on a jurisdictional error, in that it is apparent that the Tribunal had careful regard to the psychological state of the applicant, and her evidence in this regard, and the importance in bearing this in mind when making credibility findings. Having addressed all of these matters it was open to the Tribunal to proceed to make the findings that it did.
(c) That the Tribunal drew conclusions not based upon evidence.
In her written outline the applicant says that the Tribunal made adverse comments about the timing of her departure from Sri Lanka, saying that it was all speculative.
The case, as put by the applicant in her written outline, does not fairly portray the decision of the Tribunal. The Tribunal identified at paragraphs 44 to 46 the facts underlying her move and the delays that occurred, saying:
44. The applicant gave evidence that she had no difficulties in obtaining a Sri Lankan passport, which was used to her on 28 April 2005. She stated that, apart from her immediate family, no one else knew that she was planning to leave Sri Lanka. The applicant told the Tribunal that she had not travelled overseas before coming to Australia. She stated that she sought a passport after the April 2004 general election because she had received a number of death threats and she felt she should have a valid passport so that she could leave Sri Lanka, if necessary.
45. In relation to her Tourist visa application to Australia, the applicant stated that someone in Gampaha completed the visa application form on her behalf in approximately March 2007. based on her passport and the marriage and birth certificates she provided in respect of the members of her family. The applicant stated that she could not recall what had been recorded in this visa application as the purpose of her visit to Australia. She stated that she explained to the person completing the Tourist visa application that she needed to leave Sri Lanka because she had received death threats and had instructed him to complete the form in a manner that would allow her to do so. The applicant told the Tribunal that she did not know if her second son, who is an Australian permanent resident, had completed his studies and she did not attend a graduation ceremony for him whilst in Australia.
46. The applicant stated that she departed Sri Lanka on 11 or 12 April 2007 by airplane, travelling with her youngest son, from Katunayake international airport in Negombo to Australia, with brief airport stopovers in Kuala Lumpur and Singapore. The applicant stated that she arrived in Australia on 12 April 2007 on a tourist visa, but she was not sure how long it was valid for.
The Tribunal later turned to this issue in its analysis of the applicant’s case, stating:
117. Although the applicant has expressed her fear of persecution, the Tribunal notes that she did not depart Sri Lanka until April 2007, approximately three years after the most serious incidences of alleged persecution took place.
118. As stated previously, the letter of support dated 3 October 2007 from Mr Ananda Samarasekera stated that the applicant became fearful of moving about alone and that her house was damaged after the 1994 general election, not the 2004 general election campaign as claimed by the applicant. Even if the Tribunal proceeds upon the basis that Mr Ananda Samarasekera meant to refer to events following the 2004 general election, the Tribunal observes that the applicant gave evidence that the serious attacks that took place upon her person and property occurred not long after the 2004 general elections. The applicant also confirmed at the Tribunal hearing that she obtained her passport in April 2005 without any difficulties. She stated that she took steps to obtain her passport because she had received a number of death threats and therefore wanted to be able to leave Sri Lanka, if necessary.
119. However, although she had a valid passport, the applicant did not depart Sri Lanka for another two years, despite the nature of threats she claimed to receive in both Gampaha and Negombo. The Tribunal has considered the possibility that the income from the applicant’s leased business may not have been sufficient to pay for the airfare to Australia or that it may not have been possible for her to sell her damaged home for the price she may have wanted in order to have the funds to travel to Australia. On the other hand, the applicant’s decision to remain in Sri Lanka for almost two years after she said she was physically attacked and her home was damaged, is relevant, in the Tribunal’s view, to the seriousness with which the applicant viewed the risk she claims to have been facing at that time, given that she had one son in Australia, and was subsequently able to travel to Australia with her younger son.
The Tribunal has examined these facts in the context of the particular case and drawn conclusions that were open to it. I find no error on the part of the Tribunal that would amount to a jurisdictional error in this regard.
(d) That the Tribunal misconstrued and misinterpreted the convention criterion.
In support of this ground the applicant argues that the Tribunal misconstrued and misinterpreted the Convention criteria, alleging the test is not whether the Sri Lankan government was unwilling or unable to protect her but whether the applicant had a well-founded fear and was unable and unwilling to return to Sri Lanka.
In this case the manner in which the Tribunal Member has explored the possibility of state protection makes the decision a little difficult to understand. It appears clear that the decision was based upon the fact that the applicant did not face a real chance of persecution in the Convention sense in the reasonably foreseeable future, and therefore the availability of state protection or the ability of the applicant to move did not actually become relevant. The Tribunal, however, went on to discuss the availability of state protection (see paragraphs 121-124) and later the capacity of the applicant to relocate.
As a result of the Tribunal’s findings on the primary issue, it matters not what the Tribunal found on the secondary issues as the applicant had not established a basis for a protection visa.
The findings on the primary issues are not clearly stated in one passage therefore it is appropriate that I set them out. Firstly, the Tribunal considered the applicant’s political participation, concluding:
106. Accordingly, based on all the evidence before it, whilst the Tribunal accepts that the applicant has been a long-standing and active supporter of the UNP during election campaigns in her local area, the Tribunal finds that this has been at a low level. The Tribunal does not accept that the evidence demonstrates that the applicant has been an active UNP supporter in non-election periods, despite her claims to have been involved in Sri Lanka politics since 1977. Nor does the Tribunal accept that the applicant is as well-known as a UNP supporter as she claims.
Thereafter the Tribunal addressed a number of specific incidents that were said to be attacks on the applicant directly and her house and animals, concluding:
112. Therefore, the Tribunal does not accept that the evidence before it establishes that the applicant’s property, including her water well, has been the subject of politically motivated attacks due to her political opinion as claimed.
Following that, the Tribunal considered evidence of threats to the applicant, concluding:
116. The Tribunal has taken into account the applicant’s explanation that because her spouse and eldest son were not as politically active as she was they have not been subjected to any attacks or physical harm. On the other hand, the Tribunal notes that the applicant has not identified any particular physical attaches upon herself or her property during her three years in Negombo. In such circumstances the Tribunal does not accept that the threatening telephone calls the applicant claims to have received in Negombo prior to her departure for Australia in April 2007 indicate that there is a real chance that she will be subjected to Convention-related persecution in the reasonably foreseeable future. Given this, the Tribunal does not accept that the threatening telephone calls the applicant claims her spouse received since her arrival in Australia indicate that the applicant is at an increased risk of serious harm in the future if she were to return to Sri Lanka.
Following that, the Tribunal identified the evidence with respect to the applicant’s departure from Sri Lanka, which is set out above, and the conclusions that were drawn at paragraph 119 of their decision (supra).
Ultimately the Tribunal found:
147. In considering the applicant’s claims that she faces harm from the supporters of the political parties that constitute the current coalition government in Sri Lanka, the Tribunal does not accept that if the applicant returned to Sri Lank she faces a real chance of being targeted by these rival political supporters. The Tribunal notes that it is entirely understandable that, given the extent to which political violence is a feature of election campaigns, as a low-level UNP supporter the applicant may well have been frightened following the outcome of the 2004 general election and the 2005 presidential election. However, for the reasons set out in this decision, the Tribunal does not accept that there is a real chance that she would face any targeted, serious harm from the supporters of rival political parties in Sri Lanka, given the nature of her political activities in Sri Lanka as a local, low-level UNP supporter.
148. For the reasons set out above, the Tribunal has doubts about the plausibility of the claims the applicant has put forward. However, even if the Tribunal proceeds upon the basis that the applicant was subjected to various attacks by rival political supporters as claimed, the Tribunal does not accept that the applicant’s fear of serious harm in the foreseeable future is well-founded, in the event that she elects to resume her UNP activities once she returns to Sri Lanka, whether that be during election campaigns or non-election periods. The Tribunal places some weight upon the fact that there was a lack of serious harm experienced by the applicant during a three-year period following the 2004 general elections until April 2007 when the applicant claims to have departed Sri Lanka due to her political opinion and activities. The Tribunal finds therefore that the applicant does not face a real chance of persecution in the reasonably foreseeable future solely on her account of her pro-UNP political opinion and/or activities.
Ultimately, I am not satisfied that this ground can succeed, given the Tribunal’s findings.
(e) That the Tribunal did not discuss how the degree of state protection available in Sri Lanka could make fear of persecution an unfounded fear and (f) The Tribunal’s decision on state protection was contrary to the material before the Tribunal.
For the reasons set out above state protection did not become a real issue in this case as the Tribunal ultimately concluded that the applicant did not have a well-founded fear of persecution. For this reason any errors that may have occurred in discussing state protection are not relevant as the applicant failed to satisfy the relevant criteria for the grant of the visa in any event.
(g) That the claims of the applicant were capable of demonstrating a reasonable fear of persecution.
This ground is simply a request to conduct a merits review of the Tribunal. It is clear that the Tribunal has traversed the evidence and formed its views in this regard. In her written submissions the applicant expanded this to include claims that the Tribunal had erred in treating the material as failing to come within the ambit of s.91R(2) of the Act. S.91R(2) says:
s91R(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Whilst the Tribunal referred to s.91R(2) in paragraphs 113-114 of its decision, ultimately it does not appear to have relied upon this section as excluding the applicant’s claim, rather the Tribunal had regard to the nature of the claims and formed a view as to whether or not it accepted that the matters put forward showed a real chance that the applicant would be subject to persecution in the reasonably foreseeable future.
I therefore find the applicant has not made out this ground.
(h) That the Tribunal incorrectly applied the relocation test.
As with respect to the claims relating to the ability of the State to protect the applicant, this issue is also academic in this case as the Tribunal concluded that the applicant did not have a well-founded fear of persecution in the sense required by the Convention.
For these reasons the applicant’s claims under ground (h) made no difference to the outcome of the case.
As I have not accepted that any of the applicant’s grounds are a basis for judicial review of the decision, I must refuse the applicant’s application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 19 November 2008
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