MZYRM & ANOR v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 336
•9 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYRM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 336 |
| MIGRATION – Application for review of Refugee Review Tribunal decision – self-represented applicants – grounds of application not clearly indentifying alleged jurisdictional errors – Tribunal’s decision based on credit findings – no errors disclosed – applications dismissed. |
| Migration Act 1958, s.5(9) |
| Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCASC 10 |
| Applicants: | MZYRM & MZYRN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1437 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing date: | 30 March 2012 |
| Date of Last Submission: | 13 April 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 9 May 2012 |
REPRESENTATION
| The Applicants: | In person |
| Counsel for the First Respondent: | Ms E. Latif |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The applications be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1437 of 2011
| MZYRM & MZYRN |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants applied for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 September 2011 by which the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants’ protection visas.
It should be noted that the applicants are husband and wife and that the application of the wife is advanced only insofar as she is wholly dependent as a family member upon the husband. Accordingly, I will deal only with the husband’s application as it is the only one that has been materially pressed.
The applicant submits that the Tribunal fell into error in a number of ways but for the reasons that follow, I do not think that the criticisms advanced can be sustained. It follows that the applications must be dismissed.
It should be noted that the applicant raised in oral submissions an issue arising from amendments to the Migration Act 1958 (“the Act”) which came into effect March 2012. I set a timetable for written submissions on this matter. The First Respondent’s submissions were filed on
4 April 2012 and those of the applicant on 13 April 2012.
The relevant facts
Many of the relevant facts in this proceeding are not controversial and what follows is taken from the materials in the Court book (“CB”) and the submissions of the parties.
The first applicant is a citizen of Sri Lanka, born on 20 July 1949. He and his wife, born 20 October 1956, entered Australia on visitor visas on 26 May 2010.
On 18 August 2010, the applicants applied for protection visas with the assistance of a migration agent. Thereafter, on 20 May 2011 the first applicant attended an interview with the delegate and the delegate, by a decision dated 31 May 2011, refused to grant the visas. The delegate was unsatisfied about the credibility of the first applicant and his claims.
On 16 June 2011, the applicant applied to the Tribunal for a review and a review decision, as earlier stated, was dated 7 September 2011.
The first applicant’s claim for a protection visa was clearly founded on an asserted fear of persecution by reason of his political opinion which arose essentially out of his connections with and interrelationship with General Fonseka.
It is a fact that General Fonseka stood as an opposition candidate in the most recent Sri Lankan presidential election and was, on one view, only narrowly unsuccessful. Following the election, he has been arrested and jailed and remains in detention.
It is common cause that a number of perceived associates of General Fonseka (the figure appears to be about 20) were arrested, but according to country information have now all been released.
It is clear that the first applicant knows General Fonseka having served with him in the army and the professional connections between them are longstanding and relatively close.
The applicant claimed that whilst he was in Australia visiting one of his sons who is studying here, his wife telephoned him and told him that General Fonseka wished him to return to Sri Lanka and assist him in the growing of his campaign for the presidency.
It was the applicant’s case that he returned to Sri Lanka and did indeed assist General Fonseka with the campaign, conducting a door-to-door campaign in the Ambalangoda electorate (from where they both come) and otherwise assisting him.
It is the applicant’s case that following the unsuccessful campaign conducted by General Fonseka he was personally threatened by supporters of the President, death threats were made against him at his aunt’s house and that otherwise he was the subject of retribution.
The applicant claimed to have gone into hiding and that his house was under siege from government supporters and that his wife was harassed by the crowd and was interrogated by the police as to his location.
He decided to leave Sri Lanka which he claimed that he was only able to do as a result of assistance from a friend with an influential position at the airport.
The applicant provided extensive country information in support of his assertions and written submissions from his migration agent.
The Tribunal’s decision
The Tribunal’s decision sets out the relevant law and then set out in detail the claims advanced by the applicant under the heading
“Claims and Evidence” at CB286ff.
The applicant’s claims are perhaps most effectively condensed at paragraph 36 (CB288) in the following terms:
“The Tribunal asked the applicant why he fears returning to Sri Lanka. The applicant stated that he has no protection because of his political opinion. He stated that he is a United National Party (UNP) member, and that he worked for General Sarath Fonseka in the lead up to the 2010 presidential elections in Sri Lanka. He stated that General Fonseka had been a common opposition candidate, not representing any particular political party.”
As I have earlier indicated, the applicant’s claims all arose from this interrelationship with General Fonseka and the other ground of UNP membership.
It is clear from the matters recorded by the Tribunal about the conduct of the proceeding (see paragraphs 35 to 56 – CB288 to 291) that the Tribunal canvassed in detail with the applicant matters as to his account of the events that were of concern to it and that the applicant both had and exercised an opportunity to respond.
The Tribunal’s findings and reasons commence at CB292 and continue to CB301.
The Tribunal accepted, at paragraphs 78-81:
“78. The Tribunal found the applicant to be a generally forthright witness who was credible in regard to some aspects of his evidence, including his military record with the Sri Lankan army. However, as discussed below the Tribunal has serious concerns about the applicant’s credibility regarding the key aspects of his claims.
79. There are some significant inconsistencies in the applicant’s evidence about the events in the immediate aftermath of the Presidential election in January 2010. According to the applicant’s written statement of his claims, after the election the applicant’s home was under siege from government supporters and the police visited the applicant’s home to interrogate the applicant’s wife about the applicant’s whereabouts. However when the Tribunal asked the applicant about these events at the Tribunal hearing the applicant stated that, in fact, it was his wife who had visited the police during this period because she was scared, and wanted to find out the applicant’s whereabouts.
80. The applicant’s written statement of claims describes the applicant’s activities in the aftermath of the Presidential election, indicating that he was fearful and went into hiding from the government, moving from place to place. However the applicant’s diary extracts which the applicant provided in the course of the review, state that on 27 January 2010, which is the day following the Presidential election, the applicant “went to General Fonseka’s office and Cinnamon Lakeside Hotel also”. The country information before the Tribunal indicates that, following his electoral defeat in January 2010 Fonseka and his staff, including key opposition figures and security personnel and office staff moved into the Cinnamon Lakeside Hotel, which was then surrounded by security forces on election night, and who arrested some of Fonseka’s staff members.
81. The Tribunal considers that, had the applicant attended the office of Sarath Fonseka and also visited the Cinnamon Lakeside Hotel on the day after the election, and in the light of the country information about the events that took place there, then the applicant would have made some mention of these matters in his statement of claims or in his oral evidence at the Tribunal hearing.”
The Tribunal accepted that the applicants were both members of the UNP in Sri Lanka and that the first applicant retired from a military career consistent with his evidence. The Tribunal also expressly accepted that the applicant knew Sarath Fonseka from their childhood and throughout the time he served in the military (see paragraph 83 CB298).
The Tribunal went on to say, however, at paragraph 84:
“However the Tribunal does not accept the applicant was in a close professional or personal relationship with Sarath Fonseka as he claims. The applicant claims that Fonseka was the applicant’s close friend throughout his military career. He stated that he met Fonseka at work related conferences and spoke to him on the phone, and that they had both a personal and professional relationship, including a period in the mid-1990s when Fonseka was the applicant’s brigade commander. However when questioned about their relationship, the applicant’s knowledge of Sarath Fonseka’s recent circumstances was limited.
When questioned by the Tribunal about Sarath Fonseka’s career, the applicant was unable to say when Fonseka was promoted to the Chief of Defence Staff in Sri Lanka. He was also unable to say when Fonseka had announced that he would run for the Sri Lankan presidency. The Tribunal considers that were the applicant in a close professional and personal relationship with Sarath Fonseka, he would have known the time of these very significant events involving Sarath Fonseka. The Tribunal also gives some weight to the applicant’s evidence that he did not know why Sarath Fonseka did not have the applicant’s telephone numbers when the applicant was in Australia, or why Fonseka did not contact him at an earlier point in his election campaign. The Tribunal considers that if the applicant and Sarath Fonseka were in a close personal and professional relationship that Sarath Fonseka would have known the applicant’s telephone number, or been able readily to obtain it. Based on the evidence before it, the Tribunal considers that the applicant has overstated the closeness of his relationship with Sarath Fonseka in order to bolster his claims.”
Critically, perhaps, the Tribunal went on expressly to find that it did not accept that he was involved in Fonseka’s election campaign. The applicant did not know when Fonseka had renounced that he would run for President, an event which took place in November 2009. The applicant was in Australia for most of the period between that announcement to the date of the election, having returned to Sri Lanka on 13 January 2010, 13 days before the election date.
As the Tribunal found at paragraph 87:
“The Tribunal does not accept that the applicant returned to Sri Lanka at the request of Sarath Fonseka to assist him in his election campaign. The Tribunal considers it implausible that Sarath Fonseka would ask the applicant to come back to Sri Lanka to assist and to run his campaign less than two weeks before the date of the election, as the applicant has claimed. The Tribunal also considers it implausible that the applicant would have had time to open a political office in his aunt’s house and commence to campaign for Sarath Fonseka in the last 13 days of the campaign, or to have developed a political profile as Fonseka supporter as he claims. The Tribunal also considers that had Sarath Fonseka sought out the support of the applicant by way of asking the applicant to play a role in his bid for presidential election, he would have been able to contact him, and would have contacted him at an earlier point in time.”
The above is merely a paraphrase of some aspects of the decision but it is correct to say that the Tribunal roundly disbelieved the applicant’s assertions of involvement in Sarath Fonseka’s campaign as a result of various inconsistencies in matters to which it referred.
Paragraph 95, the Tribunal said:
“Because the Tribunal does not accept the applicant’s claims to have been involved in the election campaign of Sarath Fonseka, nor the political profile he claims to have as a result of that involvement, the Tribunal does not accept that the applicant is of adverse interest to the Sri Lankan authorities for reason of his political opinion in support of Sarath Fonseka at the 2010 Presidential elections. Because the Tribunal does not accept that the applicant is of adverse interest to the Sri Lankan authorities, the Tribunal does not accept that the applicant moved from place to place after the Presidential election to avoid detection, or that his home was under siege from government supporters, or that the police interrogated his wife about his whereabouts as he claims. Because the Tribunal does not accept that the applicant is of adverse interest to the Sri Lankan authorities, the Tribunal does not accept that he had had to obtain assistance from an airport official and complicit customs officers to depart Sri Lanka.
Looking to the future, the evidence before the Tribunal does not support the applicant’s claims that he faces a real chance of persecution if he returns to Sri Lanka now or in the reasonably foreseeable future for reason of his political opinion as a supporter of Sarath Fonseka. It follows that the Tribunal does not accept that the applicant has a well-founded fear of persecution for this reason if he returns to Sri Lanka now or in the reasonably foreseeable future.
Arising on the facts of this matter is whether the applicant’s membership of the UNP would of itself, give rise to a well-founded fear of persecution of Sri Lankan police and of their actual or imputed political opinion. The applicants have not expressed claims to fear persecution in Sri Lanka for this reason.”
The Tribunal went on to dismiss the possibility of persecution as a result of membership of the UNP on the basis of country information.
The applicant’s claims
The application filed by the applicant on 4 October 2011 set out four grounds of application (as particulars to one ground). They were:
a) The Tribunal has taken into account irrelevant consideration when it states that his diary entry should have been a part of his written statement of claims and that the tribunal gives weight to this inconsistency. The applicant’s diary entry was a part of his initial claim and did not need to be in his written submission.
b) The applicant had also stated that his home was under siege from government supporters and there was no evidence to contradict that particular piece of evidence.
c) The tribunal has erred when it says that the applicant has overstated the closeness of his relationship with Sarath Fonseka as there is no evidence to suggest that conclusion.
d) The country information quoted and used in its decision would support that as a former associate, the applicant would be of adverse interest to government authorities and also because of their membership of the UNP.
The affidavit in support of the application, likewise filed on 4 October 2011 effectively repeats at paragraphs 4 and 7 the grounds of application. Formal objection was taken to those paragraphs but in my view nothing turns upon that aspect of the matter.
The applicant’s contentions of a fact in law filed on 6 February 2012, at paragraphs 5 to 9 inclusive, effectively repeat the grounds of the application, albeit articulated in a fashion more clearly intended to bring the grounds of application within the framework of administrative judicial error. Paragraphs 10 and 11 assert first, that the Tribunal misconstrued and misinterpreted the Convention and secondly assert that “the tribunal did not discuss how the degree of state protection available in Sri Lanka could make fear of persecution at the hands of the PA government, members/supporters an unfounded fear.”
The first respondent’s written submissions at paragraph 20 endeavour to categorise the matters raised and do so as:
a)Whether the Tribunal erred in the weight it gave the applicant’s claims and documents.
b)Whether the Tribunal’s finding was supported by evidence.
c)Whether the Tribunal’s use of the country information before it reveals error.
d)Whether the Tribunal applied the correct test in relation to state protection.
In my opinion this is a fair description of the applicant’s claims.
The matters advanced by the applicant at the hearing
The applicant was self-represented with the assistance of an interpreter. His submissions asserted error on the part of the Tribunal but these, understandably enough, were not articulated in any fashion that suggested any particular jurisdictional error. The applicant repeated that he would be in danger and pointed to the fact that General Fonseka is still in custody. He asserted that there had been raids upon his aunt’s and sister’s house and asserted that there had been no consideration by the Tribunal of the seriousness of his case.
He referred to the introduction of amending legislation in March of 2012 in respect of which written submissions have been received as earlier indicated.
The applicant went on to say that the amending legislation brings in new matters relating to the imposition of the death penalty, torture, inhumane treatment, degrading treatment and arbitrary arrest, all being matters which had not been considered in the past and which the applicant said applied to him.
The Minister’s oral submissions essentially traversed the materials in the Court book and drew the Court’s attention to the findings of the Tribunal arising from those materials and otherwise relied upon written submissions.
In reply, the applicant spoke at some length. He had brought to Court with him a number of documents, some of which appear to have been before the Tribunal and some of which were probably not. The essence of what he wished to put was that in fact he did have a close relationship with General Fonseka who was a former classmate during their military training. He brought a photograph to prove this although he did not formally seek to tender it.
He referred to the fact that another general was in custody but did confirm that he had only worked politically for a short time for General Fonseka. He said he was heavily involved with him in their joint home village Ambalangoda.
It is fair to characterise what the applicant had to say as being a factual refutation of the findings of the Tribunal that dealt with his relationship to General Fonseka. Additionally, he sought to detail matters giving rise to his fears upon return, some of which clearly were before the Tribunal and which were rejected. Others, as I pointed out to him, were not admissible because they were not before the Tribunal. Indeed, this latter observation applies to the materials appended to his contentions of fact and law which were not before the Tribunal either.
Consideration of the grounds raised
Ground 1 - The alleged misunderstanding about the diary entry
I accept the submission of the first respondent in this regard. The Tribunal did not criticise the applicant for not including the diary extracts in his written submission. The Tribunal concluded that had the first applicant attended the office of General Fonseka and visited the Cinnamon Lakeside Hotel as indicated by the diary extract, he would have had an awareness of significant incidents that took place at the hotel at that time. It was the first applicant’s omissions in his evidence in this connection that formed a basis for the Tribunal detecting an inconsistency in his claims.
This was a finding of fact made by the Tribunal. It was well open to the Tribunal on the materials before it to reach the conclusion that it did. The Tribunal did not fall into jurisdictional error in doing so.
Ground 2 - Whether the Tribunal’s findings were supported by evidence
In my view, this ground can be dealt with shortly. The Tribunal’s finding that the applicant’s home was not under siege from government supporters was supported by evidence. The inconsistencies between the account first tendered by the first applicant and what he said at the Tribunal, namely that it was his wife who had gone to the police, was sufficient in my view to give rise to a finding of the sort that was made. So far as the issues of the closeness of the relationship with General Fonseka were concerned, the Tribunal’s finding was amply open to it on the materials before it and could not on any possible view be said to have been made in such circumstances as to give rise to jurisdictional error.
Ground 3 – Whether the Tribunal fell into error in relation to country information
It should be noted that the country information tendered was in the main (at least insofar as it related to what had happened to General Fonseka and his supporters) not the subject of serious dispute. It was accepted by the Tribunal that General Fonseka is still incarcerated and there is no suggestion that the country information about the release of his other supporters is in any way wrong.
Even if it was wrong (and I note that the applicant said there is another general in jail at the hearing before this court) the selection and weight to be given to country information is entirely a matter for the Tribunal (see Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCASC 10 at [12]–[13]).
Ground 4 – Whether the Tribunal applied the correct test in relation to state protection
This ground is somewhat difficult to construe. No claim was made by the applicants as to state protection in terms. Rather, the applicants claim to fear persecution on grounds of an imputed political opinion. The Tribunal did not make any finding in relation to state protection and it was not required to do so in the circumstances that obtained, namely that the Tribunal found that the applicants did not have a well-founded fear of persecution and the issue of state protection had not been raised.
The Amending Legislation
As earlier indicated both parties forwarded submissions about this. The first respondent’s note refers to the Migration Amendment (Complementary Protection) Act 2001 (Act No 121 of 2011) (Cth). The written submissions provide a copy of the legislation as an annexure.
For the reasons set out in those written submissions, I accept that the amending legislation is simply not applicable to the applicant’s protection visa application because of the date upon which the amendments to the Act it introduced came into operation.
The applicant’s protection visa application was made on 18 August 2010 and the decision of the delegate was dated 31 May 2011 with the Tribunal’s decision dated 7 September 2011
It is clear for the reasons set out at paragraph 4 of the first respondent’s written submissions that this proceeding was finally determined within the meaning of s.5(9) of the Migration Act before 24 March 2012 which is the relevant date for the introduction of the amending legislation
Accordingly this aspect of the applicant’s application fails.
Conclusion
The reality is that the first applicant did not achieve a protection visa before the Tribunal because the Tribunal did not believe him. The Tribunal’s findings as I have already indicated were certainly open to it on the materials. For my part, I find the Tribunal’s finding about the amount of time available for the applicant to have been involved in any significant way in General Fonseka’s campaign (a maximum total of some 13 days following his return from Australia until the election) strikingly persuasive.
In my view none of the grounds of application are made out and it follows that the application will be dismissed with costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Burchardt FM.
Date: 9 May 2012
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