MZYFM v Minister for Immigration and Citizenship

[2010] FCA 444

FEDERAL COURT OF AUSTRALIA

MZYFM v Minister for Immigration and Citizenship [2010] FCA 444

Citation:		MZYFM v Minister for Immigration and Citizenship [2010] FCA 444
Appeal from:		MZYFM v Minister for Immigration and Citizenship [2010] FMCA 1276
Parties:		MZYFM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		VID 9 of 2010
Judge:		NORTH J
Date of judgment:		5 May 2010
Date of hearing:	5 May 2010
Date of last submissions:	5 May 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	38
Solicitor for the Appellant:	Mr T. A. Fernandez
Counsel for the Appellant:	Mr T. A. Fernandez
Solicitor for the First Respondent:	DLA Phillips Fox
Counsel for the First Respondent:	Mr R. Knowles

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 9 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYFM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	5 MAY 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The Appeal is dismissed.

2.The appellant is to 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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 9 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYFM
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	5 MAY 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1. Before the Court is an appeal from orders made by the Federal Magistrates Court on 21 December 2009.  On that day the federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal made on 16 June 2009 in which the Tribunal affirmed the decision of the delegate of the first respondent not to grant the appellant a protection visa. 

2. The appellant is a citizen of Sri Lanka.  He arrived in Australia in July 2005 on a visa which permitted him to undertake studies.  That visa came to an end late in 2008 as a result of the appellant’s failure to comply with the educational requirements of the visa.  In early 2009 the appellant applied for a protection visa.  That application was refused by a delegate of the first respondent in March 2009, and the appellant applied for a review of the decision in the Tribunal.

   THE DECISION OF THE REFUGEE REVIEW TRIBUNAL

3. The Tribunal set out in detail the appellant’s claims and the evidence which was before it.  The appellant claimed in his protection visa application that he feared he would be killed by the Janatha Vimukti Peramuna (JVP) if he returned to Sri Lanka.  Before the Tribunal was also a statement made by the appellant which was, in general terms, confirmed by his evidence before the Tribunal.  The appellant said that he spent between six and eight weeks in Beruwala assisting tsunami victims immediately following the tsunami in December 2004. Because the area in which he had been working had a population which was 50% percent Muslim, the appellant claimed that he was regarded by the JVP as a supporter of the Liberation Tigers of Tamil Eelam (LTTE).

4. The appellant claimed that in mid-2008, which was about the time when his education visa was due to expire, his father in Sri Lanka had received anonymous calls enquiring as to the appellant’s whereabouts.  His father tendered a statement to the Tribunal which indicated that initially the anonymous callers did not stipulate why they were interested in the appellant.  However, as the calls increased to between two and three a week, the callers began making claims that the appellant had assisted Tamils and denied assistance to Sinhalese. The callers also began to identify themselves as from the JVP. 

5. The appellant told the Tribunal that neither he or his father, nor any family member, were members of a political party.  He said that his father had not sought help from the police in relation to the threats because the police were corrupt and would not help him. He said the police would support the government, because the JVP formed part of the government. He gave evidence that the JVP was a ruthless organisation which would take strong steps to get rid of supporters of the LTTE.  Despite this, he also said that neither his father nor his mother had been harmed.  At the time of the Tribunal hearing, the phone calls had stopped. 

6. The Tribunal accepted that the appellant went to Beruwala and Hikkaduwa with friends to help tsunami victims. It then went on to deal with the possible grounds under the Refugees Convention. It stated at [47]:

   The Tribunal finds that the convention ground claimed is that of political opinion.  The applicant claims fear from the JVP, a political party, because of his implied political views.  The Tribunal does not accept that, because the applicant helped tsunami victims, this means he has an imputed political opinion.

7. In the same paragraph the Tribunal said:

   The Tribunal does not accept that he does have a political opinion imputed to him, or that he faces any well-founded fear of serious harm.

8. The Tribunal then discussed whether the appellant formed part of a particular social group.  This discussion arose because, shortly prior to the hearing, the representative of the appellant had written to the Tribunal raising the particular social group convention ground as a ground of the application.  The Tribunal rejected the proposition that a person being a tsunami helper was a member of a particular social group.  It said at [48] and [49]:

   48. The Tribunal does not accept that being a person who helped others during the 2004 Tsunami constitutes a “particular social group” There was such a diverse group of people assisting sufferers of the Tsunami, while it can describe a large group of people, it does not in itself constitute a particular social group. As McHugh J states in the case of Applicant S, “the members of a particular social group must be recognised as such by some persons at the very least by the persecutor or persecutors – as sharing some kind of connection ...” (Applicant S v MIMA [2004] HCA 25; (2004) 217 CLR 387).

   49. The group of Tsunami helpers is so wide, and also includes the group (the JVP) the applicant claims is the group persecuting him. The claim of being a Tsunami helper as a particular social group, the Tribunal finds is in the category McHugh J described in the case of Applicant A or being more equivalent of the group of “left handed men”, as instanced by the Judge. (Applicant A & Anor v MIEA & Anor, (12997) [1997] HCA 4; 190 CLR 225). The Tsunami helpers group is not one cognisable for being a group through persecution.

9. The Tribunal then went on to consider the two statements made by the appellant’s father. It said at [51]:

   Given that they emerged suddenly, so long after the event, and at a time his son was having problems with his course, which reduced his chances of permanent residence in Australia, the Tribunal gave these statements little weight. 

10. The Tribunal then considered the question of state protection and drew attention to the fact that the appellant was a Sinhalese Buddhist, and this group constituted the majority in Sri Lanka with the main political power.  It concluded at [53]:

    The Tribunal does not accept that the state would be unwilling to offer protection to the applicant should protection be sought, or from the applicant’s father, the recipient of the claimed telephone calls, should he seek such protection.

11. And further:

    There was no evidence provided to indicate that the police would not assist the applicant.

12. The Tribunal then referred to country information relating to the fact that over 70 per cent of the population of Sri Lanka are Sinhalese and 70 per cent of the population are Buddhist. It said:

    There are no circumstances in this case to suggest that the police would withhold protection from a Sinhalese Buddhist, as the applicant states he is.

13. The Tribunal then considered the reputation of the JVP and accepted that it had been engaged in unsavoury acts and that there had been political killings.  The Tribunal took into account the independent evidence from US State Department reports, UNHCR reports, and Amnesty reports about abductions and extrajudicial killings in Sri Lanka.  It drew attention to the fact that the great majority of the victims were Tamils, although some Sinhalese and Muslims had been targeted. 

14. The Tribunal then concluded at [56]:

    The Tribunal has not accepted that the applicant has any profile of political activity and, therefore, does not accept that he was or will be adversely targeted by JVP activists.

15. And further at [57]:

    The Tribunal does not accept the claim that the applicant’s father received threatening phone calls made against the applicant by JVP people.

16. Based on these findings, the Tribunal did not consider the appellant to be someone to whom Australia owed protection obligations under the Refugees Convention.

    THE DECISION OF THE FEDERAL MAGISTRATE AND THE CURRENT APPEAL

17. The appellant applied for a review of the Tribunal decision in the Federal Magistrates Court.  It is convenient to deal with the grounds of appeal agitated in this Court at the same time the judgment of the federal magistrate is outlined because the grounds of review relied upon in this appeal ultimately repeated the grounds upon which the federal magistrate ruled.  The grounds of appeal to this Court, in their original form, did not comply with the rules of Court in that they did not set out any comprehensible basis on which the appeal could be argued.  The Court was required to take time at the beginning of the appeal to ascertain what questions were to be argued on the appeal, and the notice of appeal was reformulated to raise those grounds.

18. It is to be hoped that this situation will be avoided in the future, and that the legal representatives for the appellant will give proper attention to the grounds of appeal.  Having said that, I acknowledge the commitment of Mr Fernandez, the solicitor for the appellant, to the cause of Sri Lankan refugees.  These appeals do not involve questions of the rights and wrongs of the way people are treated in Sri Lanka.  The role of the Court, as Mr Fernandez must know, is limited to appeals of judicial review decisions of the Federal Magistrates Court. The role of the Court is very confined. The confined nature of such an appeal must be borne in mind when Mr Fernandez next seeks to appeal in this Court. 

19. Against that background, the following grounds of appeal were argued. 

20. The first ground of appeal was also the first ground of review argued before the federal magistrate. This ground related to the consideration by the Tribunal of the case that the appellant belonged to a particular social group.  It read:

    In finding of the convention ground is that of political opinion, the Tribunal not only erred in assessing the applicant under a convention ground that he had not claimed, but in so finding the Tribunal did not have any evidence for its finding. 

21. The federal magistrate determined that the applicant had raised an implicit claim that he feared persecution by reason of an imputed political opinion and, as an alternative, said that even if the claim of imputed political opinion had not implicitly arisen from the materials, the Tribunal’s consideration of the issue would not have warranted the decision being set aside. 

22. It is difficult to understand the basis of this ground.  There was no error in the way the federal magistrate determined the issue for two reasons.  First, it is quite obvious from the reasons of the Tribunal that the claim raised was based upon the perception of the JVP that the appellant had assisted the LTTE, who were the political opponents of the JVP.  That is a clear example of an imputed political opinion.  Second, it is difficult to comprehend the submission that the Tribunal made any error, let alone jurisdictional error, by considering a ground which was not raised by the appellant.  The Tribunal’s decision to do so could only work in favour of the appellant. 

23. The second ground of appeal to this Court alleged that the federal magistrate erred in the way she dealt with the second ground of review, which was in the following terms:

    The Tribunal erred in saying that tsunami helpers group does not constitute a particular social group.  The Tribunal’s interpretation of Applicant A v The Minister 217 CLR 384 was in error, for it was not alleged that the group is not one cognisable for being a group through persecution; besides, the applicant has made a surplace claim.

24. In essence, the federal magistrate dealt with this ground by examining the reasoning of the Tribunal and determining that the Tribunal had misunderstood the nature of the law in relation to what constituted a particular social group.  However, at the end of that discussion the federal magistrate said that whether the Tribunal had misunderstood or misapplied the test for identifying a particular social group was irrelevant because the Tribunal had rejected the factual basis of the claim made by the appellant. The Tribunal had not accepted the appellant’s father had received threatening phone calls four years after the tsunami.  It considered that claim to be implausible.  Once the ground was articulated in this way, it was indeed difficult for Mr Fernandez to isolate any error committed by the federal magistrate. 

25. One might accept, although I do not need to enter into this debate, that the Tribunal misunderstood the law relating to what constitutes a particular social group.  But where the Tribunal has found in clear and unequivocal terms that the alleged threats did not occur, then no question of whether the appellant fell within a particular social group arose.  Any error made by the Tribunal was, as the federal magistrate determined, irrelevant.  It is noteworthy that in this appeal, there has been no challenge to fundamental fact finding regarding the alleged threats.  Indeed, it is difficult to imagine how such a challenge could have been mounted.  

26. The third ground of appeal, which mirrors the third ground of review before the federal magistrate was articulated as follows: 

    The federal magistrate erred by holding that the Tribunal did not err in finding that the JVP would not hold a grudge against someone, which finding was in the absence of evidence. 

27. The Tribunal had found at [50]: 

    The applicant claims that the JVP can hold long grudges, but the Tribunal does not accept that a grudge was held for over four years against someone with no political involvement at all.  It was simply for a short time with others helping tsunami victims. 

28. The federal magistrate said that the Tribunal had not erred in its approach in this paragraph because it was entitled to reject an allegation put forward by the appellant without requiring evidence contrary to the allegation.  The conclusion of the federal magistrate is expressed with brevity.  I agree with her conclusion on the basis that the finding made by the Tribunal was the result of an assessment of a number of factual circumstances from which the Tribunal drew inferences contrary to the allegation made by the appellant.  In other words, the Tribunal’s determination that the JVP did not hold a grudge in this case related to the fact that the threats were said to have occurred over four years after the assistance was rendered, and were made against someone with no political involvement but whose only conduct involved helping tsunami victims.  There is no basis for the allegation of error in the way in which either the Tribunal or the federal magistrate approached this evidence. 

29. The fourth ground of appeal before this Court was stated as follows:

    The Magistrate erred by holding that the Tribunal made no error in finding that the state would be unwilling to protect the appellant and/or his father, which finding was made in the absence of evidence. 

30. The federal magistrate referred to the finding by the Tribunal that the State would not be unwilling to offer protection to the applicant and his father if it had been claimed.  The federal magistrate went on to say that because the Tribunal had found that the underlying factual allegations of threats had not been made out, the Tribunal did not need to consider the issue of state protection.  Even if the Tribunal had made an error in assessing the evidence on that issue, it would not have affected the outcome.

31. I agree with the federal magistrate on this analysis, but would add that there seems nothing exceptionable in the factual analysis by the Tribunal on the issue of state protection.  The appellant’s father did not seek such protection.  There was evidence from which the Tribunal could and did conclude that a Sinhalese Buddhist with no political involvement, if threatened, would be able to claim the protection of the police in Sri Lanka. 

32. The fifth ground of appeal in this Court was stated as follows: 

    The learned Magistrate erred in holding that the Tribunal made no error in finding that the police would not withhold protection for a Sinhalese Buddhist, when instead there was evidence to the contrary. 

33. This matter has been dealt with in relation to the previous ground.

34. The appellant then argued that the federal magistrate was wrong in determining the sixth ground of appeal, which took issue with the Tribunal’s determination to give little weight to the father’s statements.  The federal magistrate determined that on this ground the appellant was impermissibly seeking merits review.  I agree with the federal magistrate.  The Tribunal’s language, expressed in terms of weight to be given to the statements, is the classical language of evidentiary assessment.  When one looks at the way in which the Tribunal dealt with the father’s statement that view is confirmed.  Paragraph 51 of the Tribunal’s decision, referred to earlier at [9] of these reasons, indicates that the Tribunal took into account the fact that the father’s statement emerged long after the event, and coincidentally at a time when the appellant was having problems with his course which meant that his chances of permanent residence in Australia were reduced.  There were good grounds for the Tribunal not to give weight to the statements.  But, in any event, the assessment of the evidence was a matter for the Tribunal.

35. Finally, the seventh ground of appeal before this Court alleged that the federal magistrate erred in holding that the Tribunal did not commit error at [59] and [60] of its decision. These paragraphs read:

    59The Tribunal does not accept that the that the applicant has experienced serious harm amounting to prosecution in the past in Sri Lanka on account of his political opinions or as a helper of people affected by the 2004 Tsunami, or for any other Convention reason.

    60The Tribunal does not accept that there is any real chance that the applicant’s involvement in helping Tsunami victims in December 2004 will result in the applicant being adversely targeted by groups such as the JVP or that he will experience serious harm amounting to persecution as a result. The Tribunal therefore does not accept the applicant has a well founded fear of being persecuted on account of his political opinion or other Convention reason if he returns to Sri Lanka now or in the foreseeable future.

36. The argument of the appellant was that these two paragraphs failed to take into account that the appellant had made what Mr Fernandez said was a surplace claim.  By that, he meant a claim which arose after the appellant left Sri Lanka.  There might be argument about whether the circumstances of this case are properly described as a surplace claim.  They would not ordinarily be described in that way.  However, the federal magistrate determined that the applicant did not have a surplace claim, and that the ground was misconceived.  It seems likely that that conclusion arose from an understanding that a surplace claim involves conduct in Australia which would give rise to a fear of persecution in Sri Lanka.

1. The substance of this ground, however, is the suggestion that the Tribunal failed to understand that the basis of the appellant’s case was not about harm already experienced in Sri Lanka, but related to the threat of harm which arose after he left.  The argument fails for the reason that at [60], the Tribunal specifically addressed the question of future danger in Sri Lanka.  It is true that at [59], the Tribunal recorded its finding that there was no serious harm experienced by the appellant in Sri Lanka in the past.  However, that is only half of the story to which the Tribunal referred.  It follows that, although perhaps on a different basis to that taken by the federal magistrate, this ground cannot succeed. 

   CONCLUSION

2. The grounds of appeal are so obviously unsustainable that one asks whether it was proper for them to be raised at all.  They seem to be a last ditch attempt to rescue the situation which arose when the appellant failed to secure the continuation of his education visa.  The grounds were hopeless.  They are rejected, and the appeal is dismissed.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        17 May 2010