FEDERAL COURT OF AUSTRALIA

MZWSC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1873

MIGRATION – no question of principle – appeal dismissed

SAAT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 345, applied

MZWSC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 866 OF 2005

MARSHALL J

20 DECEMBER 2005

MELBOURNE

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant 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.

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The appellant, who is a citizen of Sri Lanka, appeals from a judgment of Federal Magistrate O’Dwyer in which his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse the appellant a protection visa.

2                     On 16 June 2005 his Honour dismissed the appellant’s application on account of her non-attendance before him on that day, combined with her previous non-attendance on 19 May 2005.  At a further hearing on 15 July 2005 the learned Federal Magistrate refused to reinstate the application.  He considered that the explanation given by the appellant for her non-attendance was “grossly inadequate”.  His Honour also considered that the substantive application lacked merit.  He said that the appellant sought, in effect, an impermissible merits review of the decision of the Tribunal.

3                     The appellant, who is self-represented, submitted that the Federal Magistrate erred in not accepting that she could not attend Court on 19 May 2005 and 16 June 2005.

4                     The appellant also contended that his Honour erred in concluding that the substantive application lacks merit.

5                     The appellant submitted that the Tribunal erred in finding that she did not suffer serious harm.  She contended that the Tribunal did not take the following factors into account:

• threats made to her father;
• the death of her brother;
• the harassment and death threats she received;
• the fact that she had to flee her home;
• the threatening letters and phone calls she received;
• the visits by United National Party supporters to her home; and
• failure by the police to act upon complaints made by her to them.

6                     At p 5 of its reasons for decision, the Tribunal noted the appellant’s claim that she and her father received “harassment and death threats from the UNP and when it was bad she would not stay at her home, but with other family or friends”.  Shortly thereafter the Tribunal referred to the death of the appellant’s brother, after he had been taken away in a van by three men.  It also referred to her claim that she received death threats.  In addition, the Tribunal referred to the appellant’s claim that she received threatening letters and phone calls from UNP supporters. The Tribunal repeated the claims about death threats and unwanted communications from UNP supporters at p 9 of its decision.  It also noted her claim that:

“The police promised her protection, but it did not happen.”

7                     At p 16 of its decision the Tribunal found that the threats to the appellant’s father ceased in 1996, after he stopped taking part in politics.  The Tribunal noted that, prior to the December 2001 elections, the appellant travelled to Switzerland, Thailand and Japan.  It found that she would not have undertaken such travel and then return to Sri Lanka if she were afraid of death or injury at the hands of political opponents. The Tribunal found, in effect, that the appellant did not have a high profile in the People’s Alliance party.  The Tribunal did not accept, at p 17 of its decision, that the police had taken no action about her alleged complaints, noting that the police had made enquiries in 1996 about threats to her father and had searched for UNP supporters, who were alleged to have made the threats.

8                     In short, the Tribunal did not accept that the appellant faced a real chance of serious harm if returned to Sri Lanka because it did not accept that she had a political profile of a sort which would lead UNP supporters to harm her.  It considered the chance that she would be so harmed as “less than remote”, but said that protection could be provided by the police and the judiciary.

9                     Having regard to the foregoing, it is incorrect to say that the matters at [5], set out in dot points, were not taken into account by the Tribunal when it considered whether the appellant would suffer serious harm if returned to Sri Lanka.  Whether conduct is serious enough to constitute persecution is a fact for the Tribunal to assess; see SAAT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 345 at [12].

10                  The appellant also took issue with the Tribunal’s finding that she did not play a major part in the activities of the PA.  That again was a question of fact for the Tribunal to determine and is not a proper ground of judicial review.

11                  Consequently, even if his Honour erred in not accepting the appellant’s excuse for non-attendance before him, I consider that the Federal Magistrate did not commit any appealable error in deciding that the appellant’s application for judicial review lacked merit.

Associate:

Dated:              20 December 2005