MZYRM v Minister for Immigration and Citizenship
[2012] FCA 986
•15 August 2012
FEDERAL COURT OF AUSTRALIA
MZYRM v Minister for Immigration and Citizenship [2012] FCA 986
Citation: MZYRM v Minister for Immigration and Citizenship [2012] FCA 986 Appeal from: MZYRM & Anor v Minister for Immigration & Anor [2012] FMCA 336 Parties: MZYRM and MZYRN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: VID 391 of 2012 Judge: GRAY J Date of judgment: 15 August 2012 Legislation: Migration Act 1958 (Cth) s 5(1), 5(9), 5(9)(a), 36
Migration Amendment (Complementary Protection) Act 2011 (Cth) s 2, item 35, Sch 1Convention relating to the Status of Refugees done at Geneva on 28 July 1951
Protocol relating to the Status of Refugees done at New York on 31 January 1967
Date of hearing: 15 August 2012 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 20 Counsel for the first appellant: The first appellant appeared in person The second appellant did not appear and was not represented Counsel for the first respondent: Ms E Latif The second respondent submitted to any order the Court might make, save as to costs Solicitor for the respondents: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 391 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYRM
First AppellantMZYRN
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE OF ORDER:
15 AUGUST 2012
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellants pay the first respondent’s costs of the appeal.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 391 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MZYRM
First AppellantMZYRN
Second AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAY J
DATE:
15 AUGUST 2012
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The appellants in this proceeding are a husband and wife, who are citizens of Sri Lanka. They arrived in Australia on 26 May 2010. On 18 August 2010, they applied for protection visas, pursuant to the Migration Act 1958 (Cth) (“the Migration Act”). On 31 May 2011, a delegate of the first respondent to the appeal, the Minister for Immigration and Citizenship (“the Minister”), decided to refuse to grant protection visas to the appellants. The appellants applied to the Refugee Review Tribunal (“the Tribunal”), the second respondent to the appeal, for review of the decisions of the delegate of the Minister. In a written decision with written reasons, dated 7 September 2011 and handed down or forwarded to the appellants on 8 September 2011, the Tribunal affirmed the decisions not to grant protection visas to the appellants.
The appellants then applied to the Federal Magistrates Court of Australia for judicial review of the Tribunal’s decision. On 9 May 2012, Burchardt FM delivered judgment, dismissing the applications and ordering the applicants to pay the Minister’s costs of the
application, which his Honour fixed. His Honour’s reasons for judgment are published as MZYRM & Anor v Minister for Immigration & Anor [2012] FMCA 336. By notice of appeal filed on 29 May 2012, the appellants appealed to this Court from the judgment of the Federal Magistrates Court.
By s 36 of the Migration Act, there is a class of visas known as protection visas. One criterion for a protection visa is that the person applying for the visa be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol. The terms “Refugees Convention” and “Refugees Protocol” are defined respectively in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. For present purposes, it is sufficient to say that, pursuant to the Convention, as I shall call those two documents taken together, Australia has protection obligations to a person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country
Another criterion for a protection visa found in s 36 of the Migration Act as it provided at the relevant time was that the person applying for the visa be a spouse or a dependant of a non-citizen who qualifies for a protection visa, and has been granted a protection visa, on the application of the criterion to which I have already referred.
In the present case, the application of the first appellant is made on the basis that he is a person to whom Australia has protection obligations because he has a well-founded fear of being persecuted for reasons of his political opinion, real or imputed, if he should return to Sri Lanka. The application of the second appellant is made on the basis that she is the spouse or a dependant of the first appellant.
The first appellant’s claims for entitlement to a protection visa were, as I have said, based on his political opinion, real or imputed. He said that he was a member of a political party in Sri Lanka known as the UNP, which is in opposition to the present government and the members of which, he says, are liable to persecution by the present government. More
significantly, the first appellant claimed that he was a close associate of General Sarath Fonseka. General Fonseka was an unsuccessful candidate for the presidency of Sri Lanka, having secured just over 40% of the vote, as against the successful candidate’s 58%. General Fonseka was then arrested and charged with a number of offences, and remains incarcerated in Sri Lanka. The first appellant says that, as a close associate of General Fonseka over many years, and as one who assisted him in his election campaign, the first appellant is in danger from the government if he should return to Sri Lanka.
The Tribunal conducted a hearing, at which the first appellant gave evidence. The Tribunal also relied on documents that the first appellant had already presented in support of his application for a protection visa, documents that he presented to the Tribunal, submissions from his migration agent, and information the Tribunal obtained from other sources about relevant conditions in Sri Lanka. The Tribunal found that there was a number of significant inconsistencies in the evidence of the first appellant about events in the immediate aftermath of the presidential election in January 2010. It also found that, in a number of significant respects, the first appellant’s evidence as to what was occurring in Sri Lanka in relation to close supporters of General Fonseka and members of the UNP was inconsistent with the information the Tribunal obtained from other sources.
The Tribunal concluded that it was not satisfied that the first appellant had any involvement in the election campaign of General Fonseka. During most of that election campaign, the first appellant was in Australia. The Tribunal did not accept his claim that he was requested to return to Sri Lanka about two weeks before the election and, in that two weeks, became an active supporter of the campaign. On this basis, the Tribunal rejected a number of the first appellant’s claims, including his claims about a siege of his home by government supporters and about a police interrogation of his wife about his whereabouts.
The Tribunal did not accept that the first appellant was of adverse interest to the Sri Lankan authorities and did not accept that he had had to obtain assistance from compliant officials in order to depart from Sri Lanka. Nor did the Tribunal accept that, in the future, the first appellant would face a real chance of persecution if he returned to Sri Lanka, because of his political opinion as a supporter of General Fonseka. The Tribunal also rejected the proposition that the first appellant had a well-founded fear of persecution because of his
membership of the UNP. It did so principally on the basis of information from other sources that suggested that there was no ongoing persecution of UNP members, as distinct from some violence directed against them around the time of the elections in 2010. For these reasons, the Tribunal found that the first appellant was not a person to whom Australia has protection obligations under the Convention. Therefore, neither he nor the second appellant was entitled to a protection visa.
In their application to the Federal Magistrates Court, the appellants relied on a single ground, namely that the decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction. There were four particulars of this ground alleged in the following terms:
(a)The Tribunal has taken an irrelevant consideration into account 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 the government authorities and also because of their membership of the UNP.
In his reasons for judgment, the learned federal magistrate dealt with each of these four particulars. His Honour took the view that the first appellant had misconstrued the way in which the Tribunal dealt with the issue of his diary entry. It was not that the Tribunal criticised the first appellant for not including the diary extract in his written submission; rather, the Tribunal felt that the diary entry was not accurate because, if it had been, the first appellant would have been able to give a much more detailed account of the events that had occurred after the presidential election, when General Fonseka and his staff moved from the office they had occupied to the Cinnamon Lakeside Hotel. The diary entry suggested that the first appellant had visited both of those places on the day in question. As his Honour pointed
out, the Tribunal’s finding on this matter was a finding of fact that was well open to it on the material before it. There was no jurisdictional error in the Tribunal making that finding of fact.
Similarly, with respect to what was said in para (b) of the first appellant’s particulars, his Honour found that the Tribunal’s findings when it rejected the first appellant’s claims were open to it on the material before it and, in any event, were such as not to give rise to jurisdictional error. Also in relation to para (c), his Honour said that the evidence about the release of the supporters of General Fonseka after they had been arrested justified the Tribunal’s finding to that effect. In any event, the selection of, and the weight to be given to, the information from other sources was entirely a matter for the Tribunal. As to the fourth ground, his Honour pointed out that the issue of state protection had not been raised as such in the Tribunal. His Honour found the fourth ground difficult to construe.
His Honour also dealt with an issue raised in oral argument in the Federal Magistrates Court. The first appellant had claimed to be able to rely on amendments made to the Migration Act by the Migration Amendment (Complementary Protection) Act 2011 (Cth) (“the amending Act”). In relation to this issue, his Honour invited the parties to provide their submissions in writing after the completion of the hearing of the application to the Federal Magistrates Court. The parties did provide their submissions in writing. His Honour accepted the submission of the Minister that the amending legislation was not applicable because of the date on which the amendments to the Migration Act came into operation. His Honour found that the first appellant’s protection visa application was made on 18 August 2010 and was the subject of the Tribunal’s decision dated 7 September 2011. The amending legislation did not come into operation until 24 March 2012. By that stage, as his Honour said, the first appellant’s application had been finally determined within the meaning of s 5(9) of the Migration Act and the legislation was therefore inapplicable.
In their notice of appeal to this Court, the appellants relied on the same four particulars on which they had relied in the Federal Magistrates Court. My examination of the Tribunal’s reasons makes it clear to me that none of those grounds raises an issue of jurisdictional error on the part of the Tribunal. Each takes issue with a finding of fact made
by the Tribunal. The first three grounds were dealt with correctly by the federal magistrate when he said that each was a matter of fact for the Tribunal to determine. It is not clear to me why the federal magistrate thought that the fourth ground raised an issue of state protection and its adequacy. In any event, the fourth ground merely raised another question or other questions of fact, which were matters that the Tribunal was required to determine and did determine.
In his oral submissions, the first appellant has endeavoured to persuade me that he has a good claim to be entitled to a protection visa, and that I should return his case to the Tribunal, so that it could be heard again, perhaps more sympathetically. In addition to the factual issues mentioned in the grounds of appeal, the first appellant has endeavoured to raise a number of other factual issues about the Tribunal’s decision. I have attempted to persuade him that the Court’s function is not to determine the correctness or otherwise of the factual determinations made by the Tribunal. This Court, and the Federal Magistrates Court, could only set aside the decision of the Tribunal if satisfied that the decision was the result of jurisdictional error on the part of the Tribunal. Jurisdictional error does not consist of coming to a wrong conclusion about an issue of fact. It is much more about the processes used by the Tribunal to reach its decision and about the correctness of its understanding and application of the law. No question of that kind was raised by the first appellant. Unfortunately for him, the Court cannot intervene to correct what he says are factual errors on the part of the Tribunal, or to exercise any discretionary power to return the case to the Tribunal so that the appellants can try again. The Court has no such power.
In his oral submissions, the first appellant also raised the question of the legislative amendment. I have looked at that question, particularly at item 35 of Sch 1 to the amending Act, which contains all of the amendments that are said to be relevant. Item 35 provides that the amendments made by the schedule apply in relation to an application for a protection visa made on or after the day on which item 35 commences, or that is not finally determined within the meaning of s 5(9) of the Migration Act before the day on which the item commences.
Section 2 of the amending Act deals with commencement. It contains a table detailing the dates on which various provisions of the amending Act and items in the schedule came into operation. By reference to that table, it is clear that item 35 came into operation on 24 March 2012. Well before that date, the appellants’ applications for protection visas had been finally determined as that phrase is defined in s 5(9) of the Migration Act. In particular, para (a) of s 5(9) provides that an application is finally determined when a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Pt 5 or Pt 7. For the purposes of an application to the Tribunal for review, Pt 7 contains the relevant provisions. It is clear that s 5(9) treats an application for a protection visa as having been finally determined when a decision that has been made in respect of it is no longer subject to any form of review under Pt 7. A review under Pt 7 having been completed, and not being otherwise the subject of any jurisdictional error, it is clear that the application underlying it has been finally determined for relevant purposes, at the latest by 8 September 2011.
It is also worth pointing out, and the first appellant conceded, that the amending Act had not even passed into law by 8 September 2011. It was assented to on 14 October 2011. The substance of the first appellant’s submission about the amending Act was that, if the Court would give him a chance to have his application reheard by the Tribunal, he would now be able to avail himself of the benefit of any provisions within that legislation. Once again, it must be said that the Court does not have the power simply to send the application back to the Tribunal so that the appellants may try again.
Counsel for the Minister has applied for an order for costs against the appellants. The usual principle applied in proceedings is that costs follow the event, ie that the unsuccessful party or parties pay the legal costs of the successful party or parties. The first appellant says that he has no income and no money to pay the costs, although he does suggest that he might be able to pay if given the opportunity to pay by instalments. The lack of means of an unsuccessful party in litigation is not normally regarded as a sound reason for refusing to make the usual order in relation to costs. As to payment by instalments, I have suggested that the appellants might take up that issue with the lawyers who act for the Minister. The usual principle should be applied.
The orders of the Court are that:
1. The appeal be dismissed.
2. The appellants pay the first respondent’s costs of the appeal.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate:
Dated: 6 September 2012
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