MZYCW v Minister for Immigration
[2009] FMCA 698
•24 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYCW v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 698 |
| MIGRATION – Review of Refugee Review tribunal decision – visa – protection visa. |
| Migration Act 1958 (Cth) |
| Tanji v Minister for Immigration [2001] FCA 1110 |
| Applicant: | MZYCW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1554 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 7 May 2009 |
| Date of Last Submission: | 7 May 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 24 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson of Counsel |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Ms Burchell of Counsel |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
That a writ of Certiorari issue quashing the decision of the second respondent made on 12 November 2008.
That a writ of Mandamus issue requiring the second respondent to hear and determine the application according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1554 of 2008
| MZYCW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka. He arrived in Australia on 20 March 2008 on a temporary business visa and, on 18 April 2008, made application for a Protection Visa. On 15 July 2008 a delegate of the Respondent refused a Protection Visa and the applicant sort review in the Refugee Review Tribunal. On 12 November 2008 the Tribunal affirmed the decision of the delegate not to grant a Protection Visa.
The applicant’s claim is summarised in a statement he made to the Department on 14 April 2008, to the effect that his involvement with the political party, work with the Ministers, in particular 2 ministers that the applicant had worked with, were forced to resign and then joined an opposition political party. The consequence was that death threats were said to have been made as a result of their defection and the applicant’s imputed political affiliations with them.
The Tribunal identified these details and summarised the claim as:
29. The Tribunal confirmed that the applicant was claiming that people in his same party were after him now. He stated that he received threats because of his connections with the Ministers who left the party. He had a special position because the former President’s mother had appointed him to the youth wing. He was close to Sripathi because of the latter’s Hirupola program.
The Tribunal identified the decision that had to be made in its findings, stating:
41. The Tribunal accepts that the applicant was working on the personal staff of the former President for a number of years. It accepts that he is a supporter of the ideas embodied by that President and continued by the same party in the current presidency. It accepts that he worked in a voluntary capacity after he lost his job following the change in President and supported the election of the current Rajapakse.
42. The applicant has claimed a close relationship with Sripathi Sooriyaarachchi through the work he did on a project called Hirupola. This work he did in his paid capacity on the personal staff of the President. The applicant did not provide any evidence that the participation in this project was nothing other than part of his paid employment, nor is there any indication either directly or indirectly that the relationship was one purely within the bounds of government business, conducted in the course of one’s duty. The said Minister found himself in disagreement with the president about what the president may have done in terms of the Tamil vote, and he and two others either left the party or by some accounts were sacked by the President. Beyond the statement of the applicant that he worked on this project, he has not shown that he was close to this person such that he would be harassed and threatened because of the perceived political views ascribed to him on the basis of what Mr Sripathi had done, or indeed be considered part of this ‘clique’. The applicant was one of 300 staff of the former President and by his own evidence his position was not a senior one; he has not claimed having a public profile in his position such that he would be well known. Given the above the Tribunal finds that the applicant, even though he worked with Sripathi, would not be associated with him in such a way as to make him indistinguishable from the Minister’s views and actions. The Tribunal finds that the applicant would not be targeted for reason of his imputed political opinion as a traitor to the cause of the SLFP.
After going on to consider other specific incidents, the Tribunal concluded:
46. Having considered the applicant’s claims individually and cumulatively, the Tribunal finds that there is not a real chance that the applicant would be persecuted for reasons of a real or imputed political opinion or for any other of the Convention reasons, now or in the reasonably foreseeable future, should he return to Sri Lanka, thus it finds that his fear of persecution is not well-founded.
Ground 1
In support of the first ground, the applicant argues that the Tribunal did not consider his claim as a whole but rather considered the claim on the basis of a number of separate identifiable incidents, although it rejected each incident.
It appears to me that the Tribunal has considered the specific incidents and then turned to consider the matter as a whole at para. [46]. In this regard I am not persuaded that the applicant has shown that the Tribunal have failed to deal with an integer of his claim.
Ground 2
On the hearing of the appeal, the applicant abandoned ground 2.
Ground 3
In support of ground 3, the applicant points to the Tribunal applying an inappropriate test for imputed political beliefs or opinions, referring to the comment by the Tribunal that:
42. …Given the above the Tribunal finds that the applicant, even though he worked with Sripathi, would not be associated with him in such a way as to make him indistinguishable from the Minister’s views and actions. The Tribunal finds that the applicant would not be targeted for reason of his imputed political opinion as a traitor to the cause of the SLFP. (emphasis added)
For the purposes of establishing imputed political opinion, it is not necessary to show that the person would be perceived in such a way as to be indistinguishable from another with a strong political view. To require an applicant to show that their political opinion made them ‘indistinguishable’ from another incorrectly describes the test. The more appropriate description is a perception of a political opinion similar to, or identical to, the other, as was used by Tamberlin, J in Tanji v Minister for Immigration [2001] FCA 1110. This sentence appears to display a clear error of law in the test that the Tribunal have applied.
The real question is to determine the extent to which it is perceived that the applicant has political views and the consequences of people believing he has such views. It is not necessary to show that he has views that make him indistinguishable from another. Counsel for the Minister argues that, when reading the decision as a whole, it is apparent that the Tribunal have not applied this restrictive test but a more general test. Counsel refers to the last line of para. [42] which is a general finding that the applicant would not be targeted for his imputed political opinion. If it is that the Tribunal member took the view that the imputed opinions of the applicant had to be such as to make him indistinguishable from the relevant minister’s views then the Tribunal member has erred in the approach that must be taken. It is not apparent to me that this is merely a question of infelicitous language, nor a case where the applicant is combing through the decision with a keen eye for error.
The general comments at the end of para. [43] do not show that the Tribunal looked at the facts more broadly than deciding if the applicant was ‘indistinguishable’ from the Minister for whom he worked. If he was not ‘indistinguishable,’ the same assessment needed to be made as to how similar his opinion would be perceived to be, and the impact of this in the context of the case.
Counsel for the Minister also argued that the Court ought to exercise its discretion not to remit the matter given that a number of the other findings were against the applicant on a matter of credit. However, this is a case where the Tribunal have accepted that the applicant had worked in a voluntary capacity, supporting the election of a President, and had worked with others in government, under the direction of the relevant minister. It is not, in my view, a case where the applicant is bound to fail even if the applicant does not appear to have a strong case. In these circumstances, I am not persuaded that this is a case that I should decline to remit for a further hearing before the Tribunal.
I therefore find that the applicant has succeeded under this ground and the matter should be the subject of constitutional writs to quash the decision and be remitted for hearing according to law.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Robin Smith
Date: 24 July 2009
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