FEDERAL COURT OF AUSTRALIA

MZWTH v Minister for Immigration and Multicultural Affairs [2006] FCA 997

Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 applied

SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 applied

VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 applied

MZWTH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 164 OF 2006

SUNDBERG J

4 AUGUST 2006

MELBOURNE

THE COURT ORDERS THAT:

1.             The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.

2.             The appeal be dismissed.

3.             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.

REASONS FOR JUDGMENT

1                     The appellant, a national of Sri Lanka, arrived in Australia on 29 October 2003 to participate in the 2003 Health Pact Australian Masters Games in Canberra. On 11 December 2003 she applied for a protection visa. A delegate of the first respondent (the Minister) refused the application. The delegate’s decision was affirmed by the Refugee Review Tribunal. An appeal to the Federal Magistrates Court was dismissed. The present appeal is from that decision. Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976, the appeal is heard by a single judge.

2                     The essence of the appellant’s claim before the Tribunal was her alleged fear of persecution by members of the People’s Alliance (PA) party because the appellant had witnessed a murder allegedly committed by PA members at the behest of a Chief Minister in the PA. More generally, the appellant also feared persecution, both personally and professionally, because of her family’s past support for the rival United National Party (UNP). The Tribunal found the appellant’s evidence about her fear of persecution unconvincing and lacking credibility. It concluded that the chance that she would come to serious harm on her return to Sri Lanka was remote. Consequently the Tribunal found that the appellant was not a person to whom Australia had protection obligations under the Refugees Convention (Convention).

3                     Before the Federal Magistrate the appellant represented herself. She sought orders for writs of certiorari, mandamus and prohibition, and a declaration in relation to the decision of the Tribunal. The appellant made various claims of jurisdictional error in relation to the weight given (or not given) by the Tribunal to particular evidence, arguments, and/or considerations. The Magistrate dismissed the appeal on the basis that the Tribunal had not taken irrelevant considerations into account, and had approached its task of review with “care and in considerable detail”. He concluded that the Tribunal had “not erred in any manner, let alone made a jurisdictional error”, and that the procedure followed by the Tribunal did not constitute a breach of natural justice or procedural fairness.

4                     There are six grounds of appeal. The first is that the Magistrate “has virtually incorporated the [first] respondent’s contentions as his judgment thereby excluding judicial consideration and findings as appropriate in respect of the applicant’s grounds of review”. It is true that the Magistrate’s reasons reflect the substance of the Minister’s written submissions. Those submissions identified the various grounds of review and, by reference to pages of the Court Book, record how the Tribunal dealt with each issue raised by the grounds. There is no suggestion that the appellant’s grounds of review were mis‑stated or that what the Tribunal said about the relevant issues was incorrect. That the Magistrate accepted the Minister’s submissions does not establish error on his part, let alone jurisdictional error. The Magistrate could have recorded the Minister’s submissions and said he accepted them. No exception could have been taken to that course. That was in substance what the Magistrate did. He adopted the Minister’s submissions as his own. The contention that the course the Magistrate adopted showed that his Honour did not give his own judicial consideration to the appellant’s grounds of review is not maintainable.

5                     The second ground of appeal is predicated on the first, and accordingly must itself fail. However, ignoring the predicate, the complaint is that the Magistrate erred in not accepting the appellant’s contention that the Tribunal failed to consider her membership of the UNP, the aftermath of her witnessing the alleged murder, and the subsequent threats she received as being Convention related.

6                     The first part of this complaint has no substance. As the Magistrate pointed out, the appellant did not claim to have been a member of the UNP. The Tribunal accurately recorded the appellant’s claim that her parents were ardent supporters of the UNP. It appears to have accepted that the parents’ support of the UNP may have given rise to a perception that the appellant was associated with the party. It found that

“she has not in the past experienced persecution or harm as a result of her actual or perceived political opinion or because she or her family have links with the UNP ….”

The Tribunal went on to say that while the appellant may have been associated with the UNP, there was no credible evidence that she had any profile as a supporter of the party beyond working as a junior police officer in the security detail of senior elected party officials when the UNP was in government. The Tribunal also said that while the appellant’s parents, particularly her father, may have experienced mistreatment from supporters of the PA, it was not satisfied that the appellant was the cause of that mistreatment or that she had been mistreated. The Tribunal concluded this part of its reasons by saying it was

“satisfied the applicant has not in the past experienced any harm or persecution because of her actual or perceived political opinion, and that there is a less than remote chance she would experience harm or persecution because of this, now or in the reasonably foreseeable future.”

The Tribunal’s findings of fact made this conclusion inevitable. It did not, as the appellant asserts, fail to consider whether her claimed association with the UNP was Convention based.

7                     The complaint that the Tribunal erred in not accepting that the aftermath of the appellant’s witnessing the murder and the subsequent threats she received were Convention related is not sustainable. The Tribunal did not accept the appellant’s factual claims in this respect, and gave its reasons therefor. It then said it

“found much of her evidence on the shooting incident to be unconvincing. It does not accept her parents’ or sister’s houses were visited or damaged by persons after the June 2003 killing to intimidate or further threaten her, or that she was herself subjected to threatening calls concerning the incident. The Tribunal also rejects as unsubstantiated, the assertion she was telephoned by her parents or other family members and warned of ongoing danger for her if she returned to Sri Lanka.”

The Tribunal went on to say that if, contrary to its conclusions, the appellant was exposed to a future threat or harm from persons associated with the June 2003 shooting, it was not for a Convention reason. Rather, the “significant motivation for such threat or harm would be to prevent her giving evidence to police or at a criminal trial as to the identity of criminals”. Hence the Tribunal’s reference to the Convention basis was what might be called a fall‑back position. Even if the appellant’s complaint were sustained, it would not assist her. The Tribunal did not accept that she was exposed to future threat or harm from those associated with the murder.

8                     The third ground of appeal is also predicated on the first. However, again putting that aside, the appellant complains that the Magistrate failed to explain how the Migration Legislation Amendment (Procedural Fairness) Act 2002 showed that there was no substance in her natural justice claim. This claim was that she was denied natural justice by not being given time to lodge additional documents, particularly in relation to her reasons for delaying seven weeks before lodging her protection visa application. The Magistrate said:

“The delay in lodging the application was raised by the Tribunal at the hearing and the applicant gave her reasons for the delay. It is difficult to see what else the applicant might have said in this connection and the applicant had not indicated what else she would have said if given more time. Nor did the applicant ask for more time, or lodge any documents after the hearing, even though the hearing was on 5 August 2004 and the decision was not handed down until 29 October 2004.

It is of course for the applicant to put such information to the delegate and the Tribunal as she wishes. There was no obligation to give the applicant more time, especially as she did not ask for additional time. In any event, the application to the Tribunal in this matter was filed on 5 August 2004 and, accordingly, the Migration Legislation Amendment (Procedural Fairness) Act 2002 provided that the provisions of Div 4 of Pt 7 of the Migration Act 1958 … were exhaustive of the requirements of natural justice in relation to the matters with which they deal. In my view, there is no substance in the natural justice ground and that common law natural justice has been excluded in any event.”

9                     Plainly the Magistrate was saying that the appellant’s natural justice claim had to be measured against the provisions of Div 4 of Pt 7 of the Migration Act 1958, and so measured did not fall within the scope of the modified natural justice requirements contained therein, as is indeed the case. The complaint that his Honour failed to explain how those provisions answered the appellant’s natural justice claim is baseless. The appellant was making a common law claim that was not replicated in the modified regime. See Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [64]‑[70] and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [5]‑[8].

10                  The fourth ground of appeal is also predicated upon the first. However, the essential complaint is that the Magistrate failed to accept that the Tribunal erred in not giving the appellant “required notice that it was rejecting her evidence, which evidence was the reason or part of the reason for the refusal of her application”. It does not appear that this precise point was put to the Magistrate, although it is clear that the appellant did rely on s 424A of the Migration Act before his Honour. The Magistrate said:

“The applicant also contends that the Tribunal failed to put inconsistencies to the applicant. However, the identification of inconsistencies is a matter of the Tribunal’s evaluation of the evidence put forward by the applicant. It is not ‘information’ within the meaning of s 424A of the Act as suggested by the applicant. This issue has been authoritatively settled by the Full Federal Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24].”

Had the present complaint been put to the Magistrate, it would have been rejected for the reason contained in that passage. The Tribunal, having read the appellant’s material and heard what she said at the hearing, decided as part of its evaluation of her evidence not to accept parts of it. That decision is not “information” within s 424A. See VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24].

11                  The fifth ground of appeal is not predicated on the first. It is that the Magistrate

“erred in the finding regarding the anonymous letters. It was not open to the learned Magistrate to say what the letters actually stated. But having said so, the error on the Tribunal’s part was clear in that it did not give the appellant the requisite notice.”

What the Magistrate said about the anonymous letters was this:

“The applicant’s contention that the Tribunal disregarded anonymous letters provided to the Tribunal ignores the fact that the anonymous letters actually suggested that the applicant’s claims were false. In any event, the Tribunal rightly, in my view, disregarded that material because, being anonymous, it could not be tested.”

That is all the Magistrate said about the letters. Accordingly, it must be the “finding” of which the appellant complains. It involves no error. There is no merit in the contention that the Magistrate was not at liberty to observe that the letters suggested that the appellant’s claims were false. It is to be remembered in this connection that the appellant’s complaint was that the Tribunal wrongly disregarded the letters. In a sense, though not in that intended by the appellant, it did. It said:

“The Tribunal notes that the departmental and Tribunal files contain two unsolicited letters which could best be described as ‘dob in’ letters that challenge the legitimacy of the applicant’s claim to need protection. The Tribunal has given no weight whatsoever to those letters in deciding this application, as they are anonymous and therefore cannot be tested to determine their accuracy. Accordingly, the Tribunal has disregarded those documents and has reached its decision solely for the reasons set out below.”

There was no occasion for the Tribunal to give the appellant the “requisite notice” (s 424A(1)) in relation to the letters, because it did not take them into account in coming to its decision. Waniewska v Minister for Immigration and Multicultural and Indigenous Affairs (1986) 70 ALR 284 does not assist the appellant. That was a common law natural justice case. The present case is governed by the provisions in Div 4 of Pt 7 of the Act, which have not been infringed.

12                  The final ground of appeal is the bald claim that the Magistrate “erred in adopting the respondent’s contentions”. The appellant’s general claim (ground 1) and her specific claims of error have been dealt with. All I need say as to any other unparticularised errors is that, having considered the Minister’s written contentions before the Magistrate, no error is apparent in his Honour’s acceptance of those contentions.

13                  In her written submissions the appellant raised a matter not covered by her grounds of appeal, namely that the Tribunal should have considered whether she feared persecution by reason of her membership of a particular social group. She does not expressly identify the group, though it appears that she means the members of the UNP or those associated with it. As appears from what is said at [6], the Tribunal rejected her UNP association claim. It adds nothing to the claim to fear persecution by reason of association with the UNP for the appellant to say that the fear is based on membership of a social group consisting of those who are so associated. The claims fall together for want of a factual basis.

14                  The appeal must be dismissed with costs.

Associate:

Dated: 4 August 2006