MZYCP v Minister for Immigration
[2009] FMCA 697
•4 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYCP v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 697 |
| MIGRATION – Review of Refugee Review Tribunal Decision – visa – protection visa – no point of merit. |
| Migration Act 1958 |
| Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743; [1997] 9 Leg Rep 2; (1997) 48 ALD 481; [1997] HCA 22 SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 129 FCR 137; (2003) 199 ALR 265 NAHI v MIMIA [2004] FCAFC 10 MZXLE v Minister for Immigration and Citizenship [2007] FCA 1159 |
| Applicant: | MZYCP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1463 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 4 June 2009 |
| Date of Last Submission: | 4 June 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 4 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr B. Wee |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The amended application filed 3 December 2008 be dismissed.
The applicant pay the respondent's costs fixed at $5,865 pursuant to Order 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1463 of 2008
| MZYCP |
Applicant
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As revised from Transcript)
This is an application for judicial review of a decision of the Refugee Review Tribunal dated 28 October 2008.
The applicant came to Australia on 26 November 2007. He applied for a protection visa on 9 January 2008 on the basis of a fear of persecution due to his political beliefs. A delegate of the Minister refused the application in June 2008 and he sought review in the Refugee Review Tribunal. The Tribunal conducted a hearing in September 2008 at which the applicant gave oral evidence. This tribunal subsequently affirmed the decision of the delegate, largely on the basis that it did not accept the evidence of the applicant which the tribunal found lacked credibility.
The applicant is a citizen of Sri Lanka. He submits that he is a member, supporter and candidate of the UNP political party. He said that he left Sri Lanka because of a fear of being shot, killed or simply disappearing at the hands of those that were opponents to his political party. He said that this happened to opponents of the government of the day and he was concerned when his party is not in power.
The applicant explained that he had been a member of the UNP since 1977 and had unsuccessfully contested elections in 1997 and 2004. He said that he had been threatened many times by his opponents. Since 2003, he had undertaken various roles, including distributing posters, promoting the party to new members, assisting with accounting in presidential elections, assisting with zonal services, and as member of district working committee.
At the hearing, he claimed that there were continuing threats to his life by his political opponents. They are recounted in some detail by the tribunal at para.21 to 29 of the decision and para.48. The tribunal ultimately accepted that the applicant's home had been attacked twice in 1999; however, the tribunal concluded that the threats that the applicant had received since 1999 were more in the nature of "idle threats" than indicators of serious harm or serious threat to the applicant.
The tribunal ultimately concluded as follows:-
The applicant has claimed that if he returned to Sir Lanka nnow or in the reasonably foreseeable future he fears he would be harmed by political opponents, including his direct political opponent in his local area, because he is an active member of the UNP, because he is seen as a political threat to his local political opponents and because he is active in politics generally. However, based on all of the above, the Tribunal has found that despite the applicant’s long term involvement in the political process in Sri Lanka, including his active involvement in the UNP for over 30 years and having been a UNP candidate for election on two occasions, he has not suffered any serious harm in the past in Sri Lanka apart from the two isolated incidents that both occurred in January 1999. He has been able to participate in the UNP, stand as a candidate for that party, organize and attend political rallies and generally maintain a high profile in his local area as a UNP activist and potential candidate for election. Accordingly, the Tribunal finds that if the applicant returned to Sri Lanka now or in the reasonably foreseeable future there is no real chance that he would face any serious harm from his political opponents, including his direct political opponent in his local area, because he is an active member of the UNP or because he is seen as a political threat to his local political opponents or because he is active in politics generally or for any other Convention related reason.
At the hearing before me the applicant also raised issues with respect to whether or not the tribunal had had proper regard to attacks on others that he had identified in the material before the tribunal. The tribunal dealt with this in a more general way at para.00, saying:-
In making these findings, the Tribunal has considered the submissions made by the applicant related to the murder of a UNP Member of Parliament. Mr Maheswaran, as well as various articles submitted by the applicant highlighting attacks on UNP parliamentarians and supporters over time in Sri Lanka. The Tribunal accepts that these attacks do take place from time to time in Sri Lanka in the context of political campaigning in that country. However, as stated above, the applicant has been able to participate in the UNP, stand as a candidate for that party, organize and attend political rallies and generally maintain a high profile in his local area as a UNP activist and potential candidate for election without suffering any harm in the past, apart from the two incidents in January 1999. Accordingly, the Tribunal finds that the possibility of the applicant suffering the type of harm suffered by Mr Maheswaran and the type of harm referred to in the articles is remote. Therefore, the Tribunal finds that if the applicant returned to Sri Lanka now or in the reasonably foreseeable future there is no real chance that he would be harmed in this way.
The credit findings of the tribunal against the applicant were significant. On one issue relating to an assault in 2007 the applicant made submissions that I ought to accept that he was a witness of truth and overturn the tribunal decision. The tribunal's findings in this regard are set out at para.93 to 94 as follows:-
The applicant has provided contradictory evidence over time as to where the actual attack took place in September 2007 and as to whether or not he reported this attack to police when it occurred. In one statement to the Tribunal the applicant has claimed that the attack took place in his home. In all other statements to the Department and the Tribunal, and at the Tribunal hearing, the applicant has claimed that the attack took place on the road whilst he was on this way home from the rally. The applicant explained at the hearing that the error made in his statement where he claimed the attack took place in his home was made by a friend who was helpinh him to translate documents to provide to the Tribunal. In isolation, the Tribunal would be prepared to accept this explanation. However, in the applicant’s case and based on the findings below that the applicant has not been a witness of truth in relation to another aspect of this same incident (relating to whether or not he reported the matter to the police), the Tribunal is not prepared to accept this explanation. The Tribunal finds that the contradictory evidence provided over time by the applicant in relation to where this attack actually took place lacks credibility.
In his statement to the Department dated 29 January 2008 the applicant clearly stated that after the attack on 6 September 2007 he was on his way to the police station to make a report about the attack when he received a phone call from political opponents threatening him not to go to the police. He stated that he felt frightened and went straight home. Hwoever, at the Tribunal hearing the applicant insisted that he had called the police and made a report to them after the incident. He also produced a police report which he claimed related to this incident but which he claimed was problematic because it was dated March 2008. As was pointed out to the applicant at the hearing his two versions of events over time about whether he reported this incident to the police in September 2007 are directly contradictory. Based on his directly contradictory evidence over time the Tribunal finds that the applicant was not a witness of truth in relation to this matter and that his evidence in this regard lacks credibility. Based on this directly contradictory evidence lacking credibility, the Tribunal finds that the applicant was never attacked by political opponents in September 2007 as claimed, was not threatened to stop campaigning for the UNP, was not hit in the head with a gun, was not wounded as a result of this alleged attack requiring hospitalization, was not warned by his attackers to not report the attack and the threats to the police, that he did not continue to receive threats by telephone from political opponents after this alleged attack, that he and his wife were not forced to go into hiding to avoid further harm after this alleged incident and his neighbours did not tell him that suspicious people were outside his house whilst he was allegedly in hiding.
It appears to me to be clear that the tribunal was undertaking the process of finding the facts and that the factual findings made by the tribunal were open to it based upon the evidence before the tribunal; that is, it is open to a tribunal not to accept a person's evidence where there is contradictory evidence given, or different versions of events are given before the tribunal. It is the very core nature of the tribunal's function to make decisions as to questions of fact. It is not a function of this court in undertaking judicial review proceedings to embark upon reconsideration of the facts.
The applicant, in his amended application of 3 December 2008, lists, effectively, six separate grounds for judicial review. They can be detailed as follows:
a)the tribunal misconstrued or misinterpreted the convention criteria;
b)the claims of the applicant were capable of demonstrating that the persecution feared by the applicant was persecution within the meaning of the convention;
c)that the tribunal did not discuss how the degree of state protection available would make his fear of persecution unfounded, and that there was no reference to country information;
d)that the tribunal erred in concluding that the threats made towards the applicant were idle threats;
e)that the tribunal failed to take into consideration that the UNP was actually in power from 2001 to 2004; and
f)the tribunal erred in concluding that the applicant had suffered only two isolated incidents of violence.
Ground 1
It is not entirely clear from reading ground 1 whether the applicant is putting the case that the tribunal ought to have turned its mind to whether or not the government was unable or unwilling to protect the applicant, or whether he was attempting to agitate a case that a purely subjective test ought to be applied.
To the extent that the ground seeks to rely upon an alleged failure of the tribunal to consider whether the government was unable or unwilling to protect the applicant, it must fail, as in this case the applicant had not succeeded in showing that there was any real risk of serious harm for which the government ought to provide protection. The tribunal had not reached the point where findings with respect to the ability of a state to protect the applicant became a relevant issue.
To the extent that the ground attempts to agitate a case that a subjective test is the appropriate test to be applied, it is contrary to the existing state of the law as explained by the High Court in Guo (Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743; [1997] 9 Leg Rep 2; (1997) 48 ALD 481; [1997] HCA 22). The law as discussed in that case is conveniently summarised by Cooper J in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 129 FCR 137; (2003) 199 ALR 265 at para.12 where his Honour says:
[12] The definition of 'refugee' involves both subjective and objective elements. Elements (2) and (3) as identified by the High Court in Guo require the existence of a subjective fear of persecution, and it must be shown that this fear is held by the relevant person in fact and that this fear is a fear of persecution for a Convention reason: see also the judgment of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 396, 406, 429 and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 658. The objective element is introduced in the fourth element, which requires that the subjective fear objectively be 'well founded'.
In the context of this case, it appears clear that in applying the appropriate test as described in SDAQ to the facts as found by the tribunal, the applicant would not have succeeded. To the extent that the applicant wishes to argue that a purely subjective test ought to apply, that would have to be taken up with a higher court as I am bound by the existing authorities.
Ground 2
In substance, it appears that the tribunal is alleged to have erred because they accepted that he was a member of the UNP and that his property had been damaged in 1999, but had rejected his claim for a protection visa.
It seems clear, when one reads the tribunal decision as a whole, that the tribunal accepted there had been an attack on his house in 1999, but did not accept there had been a politically motivated attack on him in 2007, and that to the extent that there were other threats, they were not in the nature that they posed real risk to him of serious harm. In substance, this ground appears to me to be an invitation to the court to conduct a merits review, which would not be appropriate.
Ground 3
This ground is in two parts. First, a claim that the tribunal had failed to discuss the degree of state protection available. Second, that the tribunal did not have regard to country information.
To the extent that the first point is made, it has already been dealt with above. Clearly in this case the facts as found by the tribunal did not require them to go on to consider the question of state protection.
With respect to country information, it must be noted that it is a matter for the tribunal as to whether or not they are assisted by, or will have regard to, country information in a given case. This was discussed by the Full Court of the Federal Court in NAHI v MIMIA [2004] FCAFC 10 at [11] where the court said:
[11] The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
In the context of this case it does not appear that it was necessary for the tribunal to turn to the country information to make the decisions that it did as a result of the credit findings made against the applicant with respect to the events that had occurred, and the findings of the tribunal with respect to the nature of threats that it did accept had been made. I therefore find that this ground is unable to succeed.
Ground 4
This ground relates to the tribunal's conclusion that the threats made toward the applicant after 1999 were "idle threats".
The question of threats being made in the context of heated political campaigns and disputes between members of political parties is always a difficult question of fact. It is well recognised that in human endeavour when matters of emotion and belief are involved, people become aroused and vigorous in voicing their opinions and objections and indeed their disdain for those that do not hold the same political views.
In these contexts, threats of one form or another are often made, but not in a way that indicates a serious intention to carry out those threats. It cannot be the law that in every case where some form of threat has been made by one political opponent of another that this, of itself, is sufficient to satisfy the requirements for a protection visa. It is essential that the tribunal assess the threats and consider carefully whether they are sufficient to show, in the context of any particular case, real risk of serious harm to the applicant.
In this case the tribunal concluded:
[91] The applicant has claimed that he received some threats from his direct political opponent and from supports of this political opponent during the 2004 provincial election campaign. However, in his statement to the Department dated 29 January 2008 the applicant claimed that he did not take these threats seriously and that he continued to campaign despite these threats. Based on the applicant’s own evidence that he did not take these threats seriously, the Tribunal finds that these were idle threats and the makers of these threats did not intend to carry out these threats in any way.
…
[96] The applicant has made a number of vague and general claims that he has suffered threats from his political opponents over time telling him to stop campaigning and stop working for the UNP. As the applicant has participated in election campaigns and politics in Sri Lanka for a long time, the Tribunal accepts that he may have received such threats from his political opponents over time. However, as discussed with the applicant at the hearing, he has continued his involvement in politics without any apparent problems apart from the two incidents in January 1999. The applicant has also admitted in writing to the Department that he did not taken [sic] some of these threats seriously. Accordingly, the Tribunal finds that these general threats were made by political opponents in the heat of various election campaigns, they were idle in nature, the makers did not have any intention of carrying them out and they were never carried out. The Tribunal also finds that tese idle threats that were never carried out do not constitute serious harm for the purposes of the Convention
It appears to me that in the context of this case, it was open for the tribunal to form the view that it did. The applicant says that he had been threatened over the years, but had nonetheless participated in politics over 30 years. There were some incidents in 1999, but the tribunal did not accept that there were politically motivated attacks upon him after that.
I note that a similar problem confronted the tribunal member in MZXLE v Minister for Immigration and Citizenship [2007] FCA 1159 and a similar result flowed. In this case, I am not persuaded that this ground shows a basis for judicial review.
Ground 5
In this respect, the applicant says that the tribunal erred in that it failed to take into account that his political party was in power from 2001 until 2004 and therefore he would be able to believe that he was going to be protected by the government of the day.
In the way in which the case was presented, it is clear that he had been in politics for a lengthy period. There was a long period between 2004 and 2007 when he left Sri Lanka. The tribunal have considered his case in the context of a lengthy period of time in politics in Sri Lanka. In the context of the case in the way in which it was presented, it does not appear to that the particular party in power over those three years was such a significant fact that one could conclude the tribunal were in error in failing to mention it.
Again, the difficulty that the applicant faced was the findings of credit with respect to some of the events and that his case was not one where he had reached the point of consideration needing to be given to the availability of state protection. In this respect, I am not persuaded that this ground can succeed.
Ground 6
The applicant submits that the tribunal erred in finding that there had been only two isolated incidents in 1999 of actual attacks, when his evidence was to the contrary. I have set out above the tribunal's findings with respect to the incident in 2007. I note that the tribunal did accept that he was assaulted in 2007, but that it was not politically motivated.
These findings were open to the tribunal and once these findings have been made it is appropriate that the tribunal then go on to consider the matter on the basis that there had only been the two violent events that the tribunal accepted as having occurred in 1999.
In these circumstances, this ground appears to me to amount to a request to review the merits of the decision rather than a ground of judicial review.
In all of the circumstances of the case, I am not persuaded that the applicant has established a ground for judicial review and I must therefore dismiss the application.
[Further argument ensued]
Costs
In this matter the applicant has been entirely unsuccessful and the respondent entirely successful. The costs ought ordinarily to follow the event in proceedings of this nature. The applicant explains that he is impecunious and unable to meet any costs order. This itself is not a basis for refusing to make a costs order for the respondent. A costs order is not in any sense a punishment, but simply to provide recompense to the respondent who has been put to the costs of appearing in court. In circumstances, I order that the applicant pay the respondent's costs.
The amount of the costs the respondent seeks is the scale fee of $5,865. This matter has taken the usual course through the courts and this scale fee appears appropriate in the circumstances.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Robin Smith
Date: 17 July 2009
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