MZYBD v Minister for Immigration & Anor
[2008] FMCA 1539
•10 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYBD v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1539 |
| MIGRATION – Visa – protection visa persecution. MIGRATION – Judicial review – review of Refugee Review Tribunal decision. |
| Migration Act 1958 s.91R(2) |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 |
| Applicant: | MZYBD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 774 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 10 October 2008 |
| Date of Last Submission: | 10 October 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 10 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr B. Wee |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application be dismissed.
The applicant pay the respondent's costs fixed at $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 774 of 2008
| MZYBD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
The applicant in this matter arrived in Australia on 12 April 2007. He is a citizen of Sri Lanka and he seeks a protection visa as a result of claims of persecution in Sri Lanka.
He applied for a protection visa on 21 May 2007 claiming persecution on the basis of his involvement with and/or support of the UNP political party. He also referred to his family's involvement with the party.
The applicant says that he was an active supporter of the party, although did not hold any office, nor was he a formal member of the party. He says that he has been harassed by members and supporters of the rival political party, the PA party.
On 9 July 2007, a delegate of the minister refused to grant a protection visa. The applicant sought a review of that decision at the Refugee Review Tribunal on 6 August 2007. The matter was heard by the Tribunal on 22 November and a decision made on 26 May 2008 which was handed down on 3 June.
The Tribunal affirmed the delegate's decision, in substance concluding that it was not satisfied that the applicant was at risk of serious harm that was for a convention reason. The Tribunal concluded:
[102] The Tribunal accepts that the applicant may hold a subjective fear of physical harm. However, given the finding that the applicant was not a well-known supporter of the UNP, the Tribunal does not accept that this fear is well-founded. The Tribunal finds that the applicant would not attract adverse attention given his low level of political involvement. The Tribunal therefore does not accept that here would be a real chance that he would face a well founded fear of persecution in the reasonably foreseeable future on his return to Sri Lanka.
Conclusion on Persecution
[103] The independent country information before it confirms that political violence is a feature of election campaigns in Sri Lanka and that Sri Lanka suffers from generalised violence that affects all three ethnic groups living there. As a result, taken together with the country information before the Tribunal, there is little to indicate that the applicant would be likely to be targeted and suffer serious harm on the basis of his race, religion or ethnicity. Accordingly, the Tribunal does not accept that looking at the reasonably foreseeable future, the applicant has a well-founded fear of persecution in Sri Lanka on the basis of his race, ethnicity or religion.
[104] The Tribunal does not accept that if the applicant returned to Sri Lanka he faces a risk of being targeted by rival political supporters. The Tribunal accepts 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 and 2005 elections. However, for the reasons set out above, the Tribunal does not accept that there is a real chance that he would face any targeted, serious harm from the supporters of rival political parties in Sri Lanka now or in the reasonably foreseeable future, given the nature of his political activities in Sri Lanka as a local, low-level UNP supporter. Given the country information referred to above, the Tribunal does not accept that the applicant has a well-founded fear of persecution on the basis of his membership of a family that supports the UNP.
[105] Accordingly, and taking into account all of the above and considering the applicant’s claims on both an individual and cumulative basis the Tribunal does not accept that the applicant faces a real chance of persecution for reasons of his race, ethnicity, religion, membership of a particular social group, or for any other Convention reason, if he were to return to Sri Lanka now or in the reasonably foreseeable future, if he returns to Sri Lanka. Accordingly, the Tribunal does not accept on the evidence before it that the applicant is a refugee.
On 27 June 2008, the applicant applied for judicial review of the Tribunal's decision. The applicant's written submissions are brief but identify five different grounds.
Factual Background
The background to the case is that he and his mother are supporters of the UNP. The Tribunal noted:
[38] The applicant told the Tribunal that he is not a member of the UNP. He worked as a volunteer for the UNP. He has no documentary evidence of his involvement with the UNP. He and his mother were active within the UNP but his father and elder brother were not. He told the Tribunal that he had a letter from members of the UNP but did not bring it.
The Tribunal noted that there had been no attacks upon his father or brother because they are not active members of the party.
The specific incidents that he could recall are set out at paras.42 to 45 of the decision as follows:
[42] The applicant told the Tribunal that the situation in Sri Lanka is still the same today. There is still political rivalry. Nothing has happened to his father and brother as they are not active members of the UNP. Although his family is known to be involved with the UNP, his father and brother are not as well known as he and his mother. They are only slightly under threat. When asked about how the PA knew about his association with the UNP, the applicant said that the PA would have seen him.
[43] When asked about the harm he has suffered, the applicant told the Tribunal that in April 2006 he was coming home from work when he was attacked by 2 people on bikes. He knew that they were PA supporters and worked for the government under Lionel Gunawarden. The applicant did not report this incident to the police as his attackers threatened to kill him if he did. When asked how he knew the attackers were supporters of the PA, the applicant told the Tribunal that he recognised them and knew who they were.
[44] The applicant also told the Tribunal that he often received threatening telephone calls. He was not able to give specific dates but believes he received such calls about once a week. He lived with his parents and the calls were for him and his mother. The applicant told the police about the calls but they did not take any action. When asked how he knew the calls were from supporters of the PA, the applicant told the Tribunal that he was sure it was the PA.
[45] In 2005, following the elections, supporters of the PA broke windows in their house twice. He and his mother complained to the police but nothing was done. The applicant could not recall any other specific incidents but said that there were so many that he could not remember.
The Tribunal noted that he was not politically active except during elections and was not a formal member of the party, but accepted that he and his family were supporters during election campaigns.
The Tribunal carefully considered the level of involvement of the applicant in the politics of the party in Sri Lanka, saying:
[96] At the hearing, the applicant told the Tribunal that he is not a member of the UNP in a formal sense, but rather a supporter or a volunteer. He claims that he and his family have been active supporters of the UNP for sometime, although he said that his father and eldest brother, who still live in Sri Lanka, were not actively involved. The Tribunal accepts that the applicant engaged in activities such as putting up posters and flags, attending rallies and collecting money for the UNP prior to elections in 2003 and 2005. The applicant could not recall the months in which he participated in these activities other than that is was prior to the elections. He was unable to provide any detail in relation to these activities other than that the posters had Mr Kara Jayasuria’s photograph on it. The applicant gave very little detail of the policies or history of the UNP or what happened to this particular politician, other than the UNP is the party for the wealthy people and his family did very well when the UNP was in power. He gave no details of the rallies, meetings or functions that he attended other than that he attended one rally in Colombo and other local ones. The Tribunal accepts that his family are supporters of the UNP and may have been involved in pre-election campaigns for their local member. The Tribunal found the applicant’s evidence in relation to the UNP and his level of involvement to be vague and very general. Whilst the Tribunal accepts that it si not necessary for the applicant to have a thorough knowledge of party politics in order to demonstrate a fear of persecution based on political opinion, the Tribunal considers the fact that the applicant provided very little information on the UNP and his involvement reflects the low level of his actual involvement in the past. The Tribunal does not accept that the applicant is a well-known UNP supporter and politically active in Sri Lanka in any significant way during non-election periods. The Tribunal accepts that the applicant may have been a supporter of the UNP during election campaigns in the local area. However, given the paucity of evidence provided by the applicant in relation to his involvement with the UNP, the Tribunal does not accept that he is as well-known as he claims. The Tribunal therefore finds that the applicant is a supporter of the UNP but was not well-known and had a low level of involvement with party political activities.
The Tribunal rejected the claim of political motivation for the attacks saying at para.97:
[97] The applicant claims that he is at risk of serious harm should he return to Sri Lanka because of his association with the UNP. At the hearing, the applicant referred to threats against his life. He said that he had received so many that he could not remember them all. He was unable to provide any specific detail about these threats. He claims to have been assaulted by 2 people who he believed to be connected to the PA. Although he claims that he recognised these people, he did not make a report to the police about this incident and he did not seek medical attention because he claims that he was afraid to do so. Even if the Tribunal accepts that the applicant was assaulted, it does not accept that the evidence indicates that the attack was politically motivated. This is particularly so given the Tribunal’s finding that the applicant was a low-level supporter of the UNP.
The Tribunal specifically considered damage to the family home which is portrayed in two photographs that were shown to the Tribunal and have been provided today and form exhibit 1.
Ultimately, the Tribunal were not satisfied that this was a politically motivated attack, concluding:
[98] The applicant also claims that the family home was damaged and windows were broken by members of the PA. He said that this happened after the elections in April 2006. No further evidence was provided as to how the house was damaged or how the windows were broken. No supporting evidence was provided as to how he knew that the damage was caused by members of the PA. Even if the Tribunal accepts that the house was damaged, it does not accept, on the evidence provided, that the family’s property was the subject of a politically motivated attack as claimed.
With respect to the assault on the applicant and his mother, as alleged by him, the Tribunal concluded:
[99] The applicant claims that his mother was hit on the head with a mango. Independent country information referred to above indicates that there is little if any information available to demonstrate that there would have been any recent attacks by the PA on UNP supporters. The Human Rights Watch World Report from 1997 does refer to such violence, however, more recent reports concern UNP parliamentarians and ministers rather than low-level supporters. Based on the findings that the applicant has been a low-level UNP supporter, the Tribunal does not accept, on the evidence provided, that the mango incident was a politically motivated attack.
The Tribunal also considered whether the telephone harassment that was alleged showed a real chance of future prosecution that involved serious harm. It concluded that it did not, saying at para.101:
[101] The Tribunal has considered the claims of threatening telephone calls to the applicant’s family home. As state previously, the Tribunal does not accept that the applicant was involved in anything other than low-level political activities as a UNP supporter. Accordingly, the Tribunal is not satisfied that the threatening telephone calls the applicant claims to have received prior to his departure for Australia in April 2007 indicate that there is a real chance of future persecution to him that involves serious harm as defined by section 91R(2) of the Act. IN addition, the Tribunal does not accept that the threatening telephone calls the applicant claims his father and brother have received since his arrival in Australia indicate that the applicant a real chance of harm in the future if he were to return to Sri Lanka now or in the reasonably foreseeable future.
Ground A
In this ground, the applicant alleges that the Tribunal failed to understand the appropriate test and criteria that they had to apply.
At best it seems that this is a claim that the Tribunal applied a subjective and objective test at para.102 of their decisions (as set out above) and that the applicant claims that a purely subjective test should have been applied. This does not appear to me to be in accordance with the law as it has been interpreted. I am not satisfied that the Tribunal have erred in requiring that they be satisfied of more than a subjective fear on the part of the applicant.
I therefore find that this ground has not been made out.
Ground B
In this ground, the applicant says that the Tribunal failed to explain how it came to its decision with respect to the availability of state protection.
In this case, the Tribunal did not accept that the applicant had a well‑founded fear of persecution that involved serious harm.
In these circumstances, the Tribunal did not need to go on to consider whether state protection was available as the Tribunal were not satisfied that there was persecution that the applicant needed to be protected from, in the convention sense.
I therefore find that the applicant has not established this ground.
Ground C
The applicant says that the Tribunal erred in its application of s.91R(2). It is useful to set out that section, which provides:
91R Persecution
…
(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.
The Tribunal were considering whether or not threatening telephone calls, as described by the applicant, were serious harm in the context of this case.
The level of the applicant's involvement in the UNP party was a relevant circumstance which needed to be taken into account, as was the vagueness of the applicant's claims about the nature and content of the calls.
I am not persuaded that, the reasons that the Tribunal indicate, the Tribunal did not understand s.91R(2), nor erred in their application of it in this case.
Ground D
The applicant says the Tribunal failed to consider the evidence. It seems that this claim is based on the proposition that events, such as the assault upon his mother by being hit in the head with a mango thrown by an unknown person, ought to have been considered to be attacks by the PA as a result of country information that there were incidents of political violence in Sri Lanka.
A similar argument remains with respect to the incident where he says he was assaulted by two people who he believed to be connected to the PA.
The Tribunal recounts the country information earlier in their decision. It does not appear to me that they failed to consider relevant evidence in this case, rather that the applicant is dissatisfied with the findings of fact made by the Tribunal.
It appears from reading para.97 that the Tribunal were at best dubious about his evidence relating to the assault and made clear findings they did not accept the attack was politically motivated. Whilst it may have been better for the Tribunal to make more specific findings as to precisely what of this event they accepted or rejected, I also note the comments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259:
[31] … The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
It appears to me that the paragraph conveys sufficiently that the Tribunal rejected a relevant part of the evidence which brought the incident outside the category of incidents that would support a finding of a politically motivated persecution.
Ground E
It is alleged that the Tribunal had no basis for its finding, that there was little evidence of recent attacks. The Tribunal had regard to relevant material as set out at para.99 above. It appears that this argument is similar to the earlier ones that the Tribunal ought to have accepted that the incidents were politically motivated as a result of the combination of the telephone calls and the country information.
I note, importantly, that it is not for me to form my own views about what I might or might not accept of the evidence in a case such as this, but that I am limited to judicial review. This ground appears to me to be a request for a merits review in that it is clear the Tribunal had regard to the country information, and the Tribunal did turn its mind to the extent of the evidence given by the applicant.
The detail of the telephone calls appears sparse when one has regard to the evidence as recounted by the Tribunal, at paras.44 and 101 of the decision (both of which are set out above). I have not been referred to further material in any transcript. Indeed, a transcript has not been provided. There is relatively little information of detail by the applicant in the court book. I am not persuaded that the Tribunal was without basis for its conclusions in the decision.
In the circumstances, I must therefore refuse the current application.
Costs
In this matter, the respondent seeks costs in the scale amount of $5,000. The applicant says that he is unemployed and not in a position to meet any costs orders. Lack of funds on the part of a party to court proceedings is not of itself a reason not to order costs if they are otherwise appropriate.
In this case, the applicant has been wholly unsuccessful and the respondent has been successful. Costs ordinarily ought to follow the event. There are no other facts or circumstances to indicate that costs ought not follow the event in this case.
In the circumstances, I therefore order that the applicant pay the respondent's costs fixed at $5,000.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Robin Smith
Date: 20 November 2008
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