MZYSV v Minister for Immigration - [2012] FMCA 871

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYSV v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 871

MIGRATION – Review of Refugee Review Tribunal decision – no jurisdictional error – application dismissed – no matters of principle.

Migration Act 1958 (Cth), ss.417, 424A
Migration Amendment (Complementary Protection) Act 2011

Mohamed v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 234; [1998] FCA 485

Applicant:

MZYSV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1730 of 2011

Judgment of:

Riethmuller FM

Hearing date:

14 August 2012

Date of Last Submission:

14 August 2012

Delivered at:

Darwin (via video link to Melbourne)

Delivered on:

14 August 2012

REPRESENTATION

Applicant:

In person

Counsel for the First Respondents:

Ms Holt

Solicitors for the First Respondents:

Clayton Utz Lawyers

ORDERS

The Application be dismissed.
The Applicant pay the costs of the First Respondent fixed at $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

MLG 1730 of 2011

MZYSV

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application for judicial review of a decision of the Refugee Review Tribunal dated 11 November 2011.
The applicant is a Sri Lankan man of 25 years of age. He has been in Australia for some time, it seems from around 2008, on a student visa and he was due to leave Australia in September 2010. He then applied for a protection visa. His father had visited Australia between October 2009 and January 2010. The claim, in substance, is that he and his family are supporters of the UNP political party in Sri Lanka and therefore at risk.
He says that he assisted in an electoral campaign in 2007 in the Western Province Provincial Council elections and, importantly, that his father was a friend of General Fonseka, a presidential campaigner in 2010. He says that his father actively assisted General Fonseka in his presidential campaign and that, as a result, his father is at risk of persecution because of his political opinion, as is his mother who also assisted and that he, both directly as a result of his assisting the UNP campaign in 2007 and as a result of an imputed opinion due to his father’s involvement, would also be the subject of targeting or attack.
The tribunal rejected his claim that he was active in Provincial elections assisting the UNP in 2007, noting that website information indicated that there were no elections as described in that year. This is set out at paragraph 78 of the decision, where the tribunal said:
“The Tribunal accepts that the applicant may have been a supporter of the UNP and that he became a member of the UNP in 2007 given that he demonstrated a basic level of knowledge of the party and that his parents were also supporters of the party. However, the Tribunal does not accept that the applicant was an active member of the party. The Tribunal notes that the applicant claimed that he participated in the Western Provincial Council election in August 2007, pasting posters, handing out leaflets, canvassing from house to house and attending meetings. Yet, as the Tribunal put to the applicant in the hearing, there was no Provincial Council elections held in 2007 according to the Department of Elections. The Department of Elections website provides that provincial council elections for the Western Province were held in 2009. The Tribunal notes when this information was put to the applicant he initially suggested that all the details are not publicised because there is a lot of corruption and fights during elections in Sri Lanka. The Tribunal finds it implausible that a government department which is tasked with the duty of publishing the results of elections would omit the results of particular past provincial council elections but publish others dating back to 2004. The applicant also stated in response to the information put to him from the Department of Elections that he may have worked for Mohan Lal Grero during a by-election. The Tribunal does not accept that if the applicant was attending regular meetings, campaigning door to door and distributing pamphlets and leaflets he would not recall with some accuracy, the purpose of his alleged activities. Nor does the Tribunal accept the applicant participated in a local council election for the Municipal Council of Sri Jayawardenapura, as he claimed in the hearing, given that the Department of Elections website has recorded the final results of the local authorities election in 2006, including in Sri Jayawardenpura, and nothing for 2007. The Tribunal therefore does not accept that the applicant was active during local council elections in 2007.”
It seems clear that the applicant was asked about this issue during the hearing from what is said at paragraph 34 of the decision, where the tribunal recount:
“The applicant stated that he participated in the Western Province election in August 2007. The Tribunal noted that the Department of Elections website does not refer to any Provincial Council elections being held in 2007. The applicant stated that this was only for the Western Provincial Council and not for the entire country. He stated that sometimes all the details are not publicised because there is a lot of corruption and fights going on during elections in Sri Lanka. The Tribunal put to the applicant that it accessed the past provincial council election results from the Department of Elections and it shows the results of Provincial Council elections in 2004, in 2008 in the Eastern Province and Sabaragamuwa and North Central Province, and in 2009 in the Western Province, Uva Province and Southern Province. The Tribunal noted that there are no results for Provincial Council elections held in 2007. The applicant stated that he worked for the candidate named Mohan Lal Grero and this may have been some by-election for the seat.”
As the issue was raised at the hearing it enabled the applicant to afterwards provide further information such as press clippings or other internet information. I note here that a copy of the audio CD of the hearing was also provided, as appears at court book page 185.
With respect to his father’s involvement with General Fonseka, he explained that his father and the general had been friends and known each other since childhood. His father was a colonel in the army before he retired. The applicant, though, appeared to have little knowledge of precisely what his father did in the campaign. The tribunal found, at paragraph 87:
“The applicant had no knowledge of what his father did to support General Fonseka.”
The tribunal went on to look at the nature of the applicant’s claim, at paragraph 88, saying:
“Based on the paucity of information the applicant demonstrated to have regarding his father’s alleged role in General Fonseka’s campaign and the implausibility of the applicant’s father being called to assist the campaign two weeks before the elections, the Tribunal does not accept that the applicant’s father was asked to return to Sri Lanka to assist in General Fonseka’s bid to become President or that he was active in the General’s campaign after leaving Australia. The Tribunal therefore does not accept that since the applicant’s father’s retirement, his father has been directly involved in politics.”
Ultimately, the tribunal did not accept that the applicant’s father was an active member of the General’s presidential campaign and concluded in the reasons that it gave that:
“The applicant’s claims regarding his fear of being targeted because of his father’s alleged political activities to be fanciful” (See paragraph 91).
In summary, therefore, the tribunal considered the claims of the applicant with respect to his and his parents’ involvement with the UNP and rejected the evidence in that regard, ultimately concluding that the applicant was not at risk, as set out at paragraph 92, where the tribunal said:
“Given the Tribunal does not accept that the applicant’s father was a supporter of General Fonseka, the Tribunal does not accept that the applicant would be harmed by government supporters and the armed forces, now or in the reasonably foreseeable future, if he returns to Sri Lanka, because of his father’s alleged political activities in support of General Fonseka’s presidential campaign in 2010. Nor does the Tribunal accept that the applicant would face a real chance of persecution because of his own alleged profile. For the reasons discussed above, the Tribunal does not accept the applicant was an active supporter of the UNP or that he ever experienced any difficulties in the past for simply being a member of the UNP. The Tribunal does not accept that applicant’s profile as an ordinary inactive member of the UNP would warrant any attention from the authorities or opposition party supporters. The Tribunal therefore finds that the applicant would not face a real chance of persecution, now or in the reasonably foreseeable future if he returns to Sri Lanka, either because of his father’s alleged political opinion or profile or for reasons of his own political opinion.”
I note that the tribunal did accept the proposition that the applicant may have been a supporter of the UNP, (as set out in paragraph 78) however, this seems to be dealt with in paragraph 92 when dealing with the question of the extent of his support and whether he was an ordinary inactive member of the UNP.
The applicant set out five grounds for review in his application and the written submissions that were submitted touch upon a number of other potential bases for a claim. In addition, two further matters were raised by the applicant when giving oral submissions today. I therefore will turn to each of these matters to deal with them.

Ground (a) of the Application

Ground (a) of the application is a claim that the tribunal erred in failing to accept that the applicant’s father was a supporter of General Fonseka “… as there is no evidence to suggest that conclusion.”
It appears to be a complaint that the tribunal did not accept the applicant’s evidence when there was no evidence of the negative proposition: That is, the proposition that his father was not involved with General Fonseka. The tribunal canvassed the evidence relating to his and his father’s involvement in some detail (see paragraphs 78 and 93). Given that it was ultimately a finding by the tribunal that it did not accept the positive case of the applicant, it does not appear to me to be a situation where the tribunal needed specific evidence to support the conclusions that they reached.
It is quite different to a case where a tribunal reaches a finding of satisfaction of a particular fact when there is no evidence to support a positive finding. In the case of a negative finding, there does not have to be evidence to support a negative conclusion and for this reason, I do not accept that Ground (a) can succeed.

Ground (b)

The applicant argued that the country information supported the claims that the applicant’s father was a former associate of General Fonseka and that the applicant would be of adverse interest to the government. The material indicated that his father was known to the general. However, the key question was whether or not his father and/or he or his mother were actually actively involved in the UNP campaign for General Fonseka. The findings in this respect were clearly against the applicant and against the proposition he put forward with respect to his father.
It does not appear to me to have been sufficient to simply show that the applicant’s father was known to the general, as there would be literally thousands of people known to a high ranking military officer who has run for a presidential campaign. The level of connection would need to be greater and indeed, that was the central feature of the applicant’s case that was put forward. To the extent that any low level connection was present, in substance this was dealt with in paragraph 92.

Ground (c)

The third ground is an argument that there is no evidence for the tribunal to come to the conclusion that it did not accept that the applicant’s father was asked to return to Sri Lanka to assist in the general’s bid to become president. Again, this is a negative finding of the tribunal, that it simply did not accept the evidence that was given. The circumstances put forward by the applicant are not such as to immediately give rise to an appearance of a credible arrangement, that is, that his father returned to Sri Lanka only a fortnight before the election to assist.
Similarly, details relating to the claim, as set out in the decisions, show some facts and circumstances that are not consistent. The tribunal carefully considered those facts and made a decision. It was not a positive finding of fact that required a specific evidentiary foundation.

Ground (d)

In this ground, the applicant argues that there is no evidence to suggest that his father did not actively campaign in the Vavuniya District, as well as the Ambalangoda, electorate and Colombo and that the tribunal therefore erred in giving no weight to a letter from Mrs Fonseka. The matter is squarely addressed in paragraph 89 where the tribunal said:
“The Tribunal therefore does not accept that the applicant’s father actively campaigned in Vavuniya district, as well as Ambalangoda electorate and Colombo. The Tribunal has taken into consideration the letter from General Fonseka’s wife submitted by the applicant to the Department, but places no weight on this. The Tribunal notes that the letter states that the applicant’s father worked day and night at the political office in Mawatha, in Colomdo 7 and makes no mention of the applicant’s father’s activities anywhere else. Although the Tribunal has taken into consideration the applicant’s explanation given in the hearing, that General Fonseka’s wife only saw his father work in the Colombo office so that was what she wrote, the Tribunal finds it implausible that his father could possibly work day and night in Colombo, as the letter attests, as well as actively campaign in Vavuniya and Ambalangoda, some distance away, particularly in the short period of thirteen days.”
In substance, the tribunal found that the claims in the letter as to the district that his father had worked in during the electoral campaign were different to the district that General Fonseka’s wife set out in the letter. Not surprisingly, the tribunal did not accept that both could be correct and, therefore, rejected this evidence. It does not appear to me that this can be said to be an error of law in circumstances where factually the finding was clearly open and the tribunal carefully considered both the claims and the terms of the letter as set out in paragraph 89.

Ground (e)

In ground E, the applicant alleges that the tribunal gave a literal meaning to the phrase “working day and night” when it’s a phrase that’s colloquially used in Sri Lanka to imply that a person is working very hard. It seems to me that the colloquial meaning is the same in Australia, that is, not that a person is working 24 hours a day but rather, that they are working very hard and in excess of normal working hours. Nonetheless, a review of paragraph 89 makes it clear that the tribunal did not adopt a perverse or strictly literal reading but considered that it was implausible that a person could be working so hard in one district and also been appearing to be working in another district.
I note that this issue is also covered in paragraphs 21 and 22 of the applicant’s submissions and the same issues arise. In that part of his submissions, he makes the claim that the tribunal must have accepted the letter as credible. However, it seems to me that the tribunal found on the evidence before it, given the inconsistencies, it was simply not able to accept that the applicant’s father was involved. It does not seem to me that it is a necessarily logical conclusion that the tribunal found that the letter itself was credible or truthful, but simply one of the facts and circumstances that it had to take into account.
I turn then to the written outline that was submitted by the applicant. The first point appears to appear at paragraph 14. The applicant referred to the fact that the tribunal appears to accept that he was a supporter of the UNP (at paragraph 78), and that his father was a retired colonel who was acquainted with General Fonseka (see paragraph 86). The applicant in the paragraph goes on to allege that there are two integers of his claim that did not receive findings in the decision.
The first is that the applicant faced a risk of serious harm because he would be imputed to have a political opinion opposed to the current government because of his connection with the UNP and his father’s relationship with General Fonseka. The extent of his involvement with the UNP and that of his parents was clearly rejected by the tribunal and this, to the extent that he was claiming he had an imputed political opinion, because of their relationships with the General in actively supporting the campaign, could have no basis.
To the extent that there was said to be any risk as a result of being an ordinary inactive member of the UNP, this part of the claim was rejected at paragraph 92. It does not appear to me that there is a separate integer of the claim that needed to be considered, in that there was a finding of fact against any argument that there was active involvement by him or his family and a finding that ordinary inactive members of the UNP would not warrant any adverse attention.
With respect to the second integer that’s alleged in paragraph 14, it is that low level supporters could also be the subject of attack and arbitrary arrest, detention and disappearance as a result of the activities of the Rajapaksi Government. At paragraph 93, the tribunal specifically considered some submissions in relation to this, saying:
“The Tribunal has taken into consideration the various articles the applicant submitted to the Department and the Tribunal, including the articles submitted following the hearing regarding the arrest of a disabled retied captain who had attempted to visit General Fonseka in hospital, the murder of beggers in Kelaniya, the shooting incident involving UPFA MP Duminda Silva and the riot outside he Dompre police station. The Tribunal does not accept that these different incidents have any relevance to the applicant or his claims. The Tribunal finds the applicant’s assertions expressed in his written statements regarding the government’s complicity in these separate and disparate events to be pure speculation and therefore the Tribunal places little weight on these articles.”
The tribunal clearly considered that low level support was not sufficient, as set out in paragraph 92. It does not appear to me that the tribunal have failed to turn their mind to this issue.
In paragraph 15, the applicant complains that the tribunal rejected or misunderstood his claim with respect to events that happened with a disabled, retired captain. This is clearly dealt with in paragraph 93, which is set out above. The tribunal’s findings in this regard were clearly open to it.
At paragraph 16, the applicant alleges that the tribunal sighted documentary evidence produced by the applicant but did not give it proper consideration or “genuine and realistic consideration”, as referred to in a number of authorities.
This appears to relate to the material referred to in the outline in paragraph 15. The tribunal did specifically consider this material, at paragraph 93 of their decision which is set out above. The tribunal didn’t simply list it as a list of documents provided to it but the tribunal member turned their mind to it and discussed it in a paragraph in the decision. I’m not persuaded that in this case it is arguable that the tribunal could be said not to have given genuine or realistic consideration to this.

In paragraph 17 of the outline, it is submitted that the tribunal did not make any findings in relation to the fact that the applicant’s father had applied for protection and how this impacted upon the applicant’s credibility. There doesn’t appear to have been anything placed before the tribunal in this regard. In any event, the tribunal would not be bound by the outcome in a tribunal decision relating to the applicant’s father as it would simply be another administrative decision by a tribunal.
The tribunal didn’t suggest that there was any lack of credibility on the part of the applicant because of a claim that his father hadn’t applied or hadn’t sought a protection visa. The tribunal simply considered the applicant’s claim on the material before it. In these circumstances, it does not appear to me that the tribunal has failed to consider a matter that was before it, nor that there was a relevant consideration that the tribunal overlooked.
Turning then to paragraphs 19 and 23 of the outline. In these paragraphs, it is alleged that the tribunal proceeded, effectively, on the assumption that corroboration was required in order to assess the claim of the applicant and that without corroboration, the applicant would not succeed. The applicant refers to a passage of Hill J in Mohamed v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 234 at 246 and [1998] FCA 485, where Hill J said:
“There is a reference in the Tribunal’s reasons to the fact that a particular claim was not independently corroborated. That reference did not appear to play any real role in the Tribunal’s reasons. However, I have noticed a tendency in reasons issued from time to time by the Tribunal to suggest that the evidence of a witness should not be believed because it lacks corroboration. There is no requirement in law that the evidence of an applicant or, for that matter, any other person requires corroboration before it is accepted. Of course, there is no principle of law either that the Tribunal must accept what a witness says. It is for the Tribunal to assess the veracity of a witness and, from all the material before it, to find facts and reach a conclusion. Corroboration or lack of it should not distract the Tribunal from its statutory task.”
In this case, the tribunal’s reasons, when read as a whole, do not appear to me to admit of the possibility that the tribunal was rejecting the applicant’s claim simply because there was no corroboration given. The tribunal looked at the material as a whole and carefully analysed what was stated against the background of the other evidence and material before it. I am not persuaded that this is a case where the tribunal had misunderstood the burden of proof or the nature of the task in which they were undertaking.
At paragraph 20 of the outline, the applicant complains that the tribunal dismissed documentary evidence from the wife of Mohan Lal Grero, claiming that it was based on suppositions that were not put to him at any stage. This material is dealt with at paragraph 82 of the tribunal’s decision which sets out the following:
“The Tribunal has taken into consideration the birthday card sent the applicant’s mother from Mohan Lal Grero and his wife, which the applicant submitted after the heading as evidence of his mother’s involvement with the UNP and the Provincial Council Election campaign of Mohan Lal Grero in 2007. As the Tribunal has discussed above, the information from the Department of Elections does not support the applicant’s contention that there was a provincial council election held in 2007, let alone in the Western Province. The Tribunal also notes that the birthday card is also from Mohan Lal Grero’s wife, who is identified on the birthday card as the Directress of the Mohan Lal Foundation, which is a charitable organisation. The Tribunal finds that this card may have been sent to the applicant’s mother as a supporter of this particular foundation, rather than a supporter of the UNP. Given that the card does not make any reference to the applicant’s mother’s UNP membership or her alleged active support of the party, the Tribunal does not accept that this card confirms that the applicant’s mother was directly involved in politics.”
The applicant has not put before the court the transcript of the proceedings before the tribunal in order to show that no specific mention was made of this issue in the hearing. In any event, it appears that the tribunal have not rejected this card sent by the wife of Mohan Lal Grero on the basis of anything more than an assessment of the weight to be given to that evidence based upon the material that appears on the face of the document itself. For these reasons, I’m not persuaded that the applicant has established an error on the part of the tribunal in this regard.
As set out above, the matters set out in the outline at paragraphs 21 and 22 are already dealt with under Ground (e).
The final paragraph of the applicant’s outline, which is again numbered 21, but should be numbered 24, alleges that the tribunal did not discharge its statutory function by reason of the fact that it “…simply …stated that it did not believe the applicant.”
To suggest that the tribunal simply stated that it did not believe the applicant entirely overlooks four pages of reasoning of the tribunal where it carefully assesses the facts and circumstances, at the end of some 15 pages where it sets out the claims and summaries of evidence before it. Clearly the tribunal did carefully review the material before it and make findings of fact and law based upon that material. This is not a case where the tribunal simply stated it didn’t believe the applicant. In substance, it seems that this ground is really an application by the applicant for a merits review rather than a point of judicial review.
I turn then to the two further points that were raised during the course of oral argument by the applicant. The first is that he was not given copies of each of the country information documents that are referred to at paragraphs 66 to 74 of the decision. Section 424A(3)(a) makes clear that the tribunal is not obliged to give copies of such documents to an applicant. Nor does it apply to information provided by the applicant.
The applicant has not provided a transcript to suggest that the substance of the information was not discussed with him or put during the course of the hearing. Clearly, some of the country information that was generally available was raised with the applicant during the course of the hearing as it is recounted at paragraph 34 (as set out above), dealing with discussions about whether or not the provincial elections had been held in the timeframe that the applicant suggested.
The final matter that the applicant raised in submissions was that in 2012, in March, an amendment commenced to the Migration Act (the Migration Amendment (Complementary Protection) Act 2011). Those changes apply only with respect to applications made after May 2012, (as identified in item 35, schedule 1). Those provisions, therefore, do not apply to the applicant’s case here and therefore there is no basis in law for overturning the tribunal’s decision and returning the matter to the tribunal to consider it again in the light of the new law.
Whether this may form part of a basis for a more general claim for the exercise of the discretion under section 417 is not a matter that I need to turn my mind to in these proceedings.
After the submissions for the respondent had come to an end, the applicant raised a number of further submissions with respect to the circumstances in Sri Lanka and the general nature of his claim.
In substance, they were submissions for a merits review rather than judicial review. The law is quite clear that this court cannot conduct a merits review of the decisions made by the Refugee Review Tribunal.
In all of the circumstances, I therefore find that the applicant has not succeeded in showing a basis for judicial review and I therefore dismiss the application.

[Further argument ensued]

The Minister seeks the costs on scale at $6471. Given the nature of the matter and the fact that it was previously adjourned when close to hearing, as a result of the applicant suffering chickenpox, it seems to me that the amount sought is certainly reasonable.
The applicant says that he will require some time to pay. That is a matter that he can take up with the solicitors for the Minister and if there is a dispute, application can be subsequently brought to the court.
In the circumstances, the Minister has been successful and should have costs, fixed at $6471.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 18 September 2012