FEDERAL COURT OF AUSTRALIA

MZXCV & Ors v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1271

MIGRATION – judicial review – application for protection visa – whether s 424A of the Migration Act 1958 (Cth) required Tribunal to provide appellants with an opportunity to comment on country information

Migration Act 1958 (Cth) ss 424A, 422B

Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 cited

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

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 applied

MZXCV v Minister for Immigration and Multicultural Affairs [2006]FMCA 836 affirmed

QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 applied

SZBDF v Minister for Immigration and Multicultural & Indigenous Affairs (2005) 148 FCR 302 applied

VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212 cited

VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 applied

VJAF v Minister for Immigration and Multicultural Affairs [2005] FCAFC 178 applied

WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 applied

MZXCV, MZXCW, MZXCX AND MZXCY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

VID 270 OF 2006

MIDDLETON J

10 AUGUST 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the first respondent’s costs of and incidental to this appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an appeal against orders made by a Federal Magistrate on 23 February 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 12 August 2005. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration & Multicultural and Indigenous Affairs (now the Minister for Immigration & Multicultural Affairs) to refuse to grant a protection visa to the appellants.

Circumstances in which the appeal is made

2                     The appellants are citizens of Sri Lanka. Only the first appellant (“the appellant”) made claims. The other appellants rely on membership of the appellant’s family. Before the Tribunal the appellant claimed to have a well-founded fear of persecution from members of the political party, People’s Alliance (“PA”), due to his involvement with the major opposing party, United National Party (“UNP”). The appellant provided the UNP with limited assistance during the 2002 and 2004 elections. His involvement was restricted to handing out pamphlets, hanging flags, attending meetings and rallies, and participating in fundraising activities. The appellant alleged that on the night of the 2004 elections his house was stoned and surrounded by armed people. The appellants were also threatened by telephone and on one occasion the wife was threatened at gunpoint. The appellant also alleged that he was physically attacked outside his home shortly after the 2004 elections.

3                     The Federal Magistrate established that the major criticism of the appellant was the reasoning of the Tribunal. The Federal Magistrate found the decision of the Tribunal was based on findings of fact. The Tribunal accepted that the appellant was a member of the UNP and provided assistance to the party during the elections. But it did not accept the claim that he was harmed. Whilst the Tribunal accepted certain claims such as the appellant’s involvement in the UNP, it did not find that the level of his involvement was such that it resulted in, or would in the future result in, a risk of harm. The Tribunal considered each claim separately and cumulatively, finding that the appellant faced no real chance of persecution.

4                     The appellant submitted that harm to a UNP branch organiser and the death of a journalist shortly before the Tribunal hearing was not taken into account by the Tribunal. The appellant also contended before the Federal Magistrate that he had been denied natural justice because the Tribunal had failed to notify him of certain country information referred to in its reasons, being a United Kingdom Home Office report and a European Union report. The Federal Magistrate found that the information was of the same nature as that which had been dealt with by the appellant in both his visa application and his evidence before the Tribunal.

5                     The Federal Magistrate also referred to the findings of the Tribunal that there was adequate police protection available to the appellant and that even a change of political power would not result in the police shifting allegiance so that they would refuse to entertain complaints from citizens involved in political issues. The Federal Magistrate concluded that there was no jurisdictional error in the decision of the Tribunal.

6                     The appellant filed a notice of appeal on 15 March 2006. The appellant claimed the decision of the Tribunal was made without jurisdiction or was affected by an error of jurisdiction due to the Tribunal failing to take into account relevant material.

THE DECISION OF THE TRIBUNAL

7                     On 12 August 2005 the Tribunal handed down its decision affirming the delegate’s decision. The Tribunal found that there was not a real chance that the appellant would be persecuted for his political opinion and that the appellant therefore did not have a well-founded fear of persecution for a Refugees Convention reason.

8                     The Tribunal accepted that the appellant was a member of the UNP and had provided some assistance during the elections in December 2002 and April 2004. Nevertheless the Tribunal was not satisfied that the appellant’s involvement with the UNP was of such significance that it would attract future persecution. The Tribunal did not accept that the appellant’s position within the party was such that he would have been targeted or would be targeted in the future. While it was accepted that the appellant received threats and was harassed after the December 2002 elections, the Tribunal found this did not amount to serious harm.

9                     Further, the Tribunal was not satisfied that the appellant had ever been harmed as a result of providing assistance in the April 2004 elections. The Tribunal did not accept that the appellant received telephone threats in December 2003 or that he had moved house in January 2004, which he submitted before the Tribunal at the hearing but had not previously raised in his written submissions. The Tribunal noted that the appellant remained in Sri Lanka for three months after he was granted a visa to travel to Australia and that this delay did not demonstrate a fear of harm.

10                  The Tribunal accepted that an organiser for the same UNP branch as the one to which the appellant belonged was abducted and harmed some time between the elections, that is 2 April 2004, and 30 April 2004, but found that the appellant’s situation was quite dissimilar to that of a party organiser. The Tribunal also accepted that a journalist was killed for apparently political motives two weeks before the Tribunal hearing. The Tribunal accepted that acts of violence are perpetrated in Sri Lanka and that elections there are sometimes violent affairs. However, the Tribunal referred to country information to the effect that the 2004 elections were generally free and fair and conducted in a democratic manner, apart from areas in the north and the east and some LTTE (“Liberation Tigers of Tamil Eelam”) motivated violence. This country information indicated a greatly diminished incidence of violence in the 2004 elections.

11                  Finally, the Tribunal accepted that the police are often influenced by local politicians but found that this did not mean that the appellant did not have state protection in Sri Lanka. The Tribunal did not accept that the political influence of the PA would have changed the attitude and the allegiance of the police within a short time after the elections so that they would refuse to entertain complaints from the citizens.

DECISION OF THE FEDERAL MAGISTRATES COURT

12                  The Federal Magistrate concluded that there had been no jurisdictional error or breach of natural justice by the Tribunal. Paragraphs 14 to 19 of the Federal Magistrate’s reasons are as follows:

14. The tribunal’s decision is based on findings of fact. It did not accept that the specific events of harm at the time of the 2004 election claimed by the applicants happened; that is, people coming to the house, threats being made, and physical assault. It accepted that the applicant was a member of the United National Party, and that he was involved in its campaigning in the way he described. It accepted that a local organiser may have been seriously harmed and accepted that acts of violence occur in Sri Lanka, and that elections are sometimes violent affairs. But what it found as part of its fact-finding exercise was that the level of involvement it accepted did not place the husband and his family at risk of harm.

15. In the submissions today, the applicant has referred to the harm to the party organiser and the death of the journalist. It seems to be a submission that the tribunal did not take these into account. The tribunal did take them into account. It may be that behind the particulars of error alleged is a claim that the tribunal did not ask itself the question what if its finding is wrong, so that there might be a risk of harm. That cannot be the case here. The tribunal has made definite findings of fact, and concluded from those findings that there was no risk of harm to the husband or his family if they returned to Sri Lanka. All of those findings were open to the tribunal. It has considered all the relevant aspects of the applicant’s claim.

16. The natural justice point arises from country information referred to by the tribunal, United Kingdom Home Office report, and a European Union report. The applicant’s contentions allege not being given notice of those matters, and says that if he was, he could have produced other material.

17. The tribunal used the reports as showing that there was violence associated with the 2002 and 2004 elections, less at the 2004 elections. The tribunal accepted that that violence occurred and in terms of specific incidents referred to by the applicant, it accepted the abduction and injury to the local organiser, and the death of a journalist. Consequently it was information the nature of which had been dealt with by the applicant in his written submission for a visa, and his evidence to the tribunal.

18. In terms of the evidence to the tribunal – this can be said despite there not being a transcript or tape before the court – it is clear from the decision that violence at the elections was part of the applicant’s claim. In those circumstances there has been no breach of natural justice.

19. Finally the tribunal found that even if the applicant had been harmed as he claimed, there was adequate police protection. The tribunal specifically found that the change in political power and influence would not shift the allegiance of the police so that they would refuse to entertain complaints from citizens involved in political issues. There has been no jurisdictional error by the tribunal, and the application is dismissed.

Submissions of Appellant

13                  At the hearing the appellant submitted a number of contentions of fact and law. The facts were considered by the Tribunal and the Federal Magistrate and I will not rehearse them here. It is to be observed that paragraph 5 of the appellant’s “Contentions of Fact and Law” filed 26 July 2006, under the heading “My Story”, reproduces the claims made to the Tribunal in the appellant’s statement dated 28 June 2004, which were considered by the Tribunal.

14                  The “Contentions of Law” that were relied upon were as follows:

6. The tribunal misunderstood the meaning of persecution in the Convention and pursuant to section 91R(2) and in particular misunderstood the meaning of serious harm in finding that the harm we experienced in the past did not amount to serious harm. The Federal Magistrate was in error by upholding the decision of the tribunal.

The tribunal failed to consider whether the facts as it found them to have occurred led to the conclusion that we had a well founded fear of persecution for a Convention reason.

The tribunal misunderstood what follows from its finding that the persecution did not have an official quality.

The tribunal failed to consider whether the motive for the harm threatened on us was because of a political opinion held by or imputed to us.

The Federal Magistrate was again in error by upholding the above.

7. I would say that cumulatively the problems I faced constitute persecution. The tribunal did find that while I did receive threats and harassment, it concludes that these did not amount to serious harm. However, I would say the stoning of my home on the night of the April elections and wanting to set fire to it[,] my wife being threatened at gunpoint while I was at work and the assault upon me on 30 April 2004 when at the gate of my house and the other threats and harassment were of serious harm.

8. The tribunal also acted in breach of the rules of natural justice by failing to alert us to the materials adverse to our case and the tribunal also failed to give us the opportunity to give evidence and present arguments relating to these adverse materials.

The prime example of this is that from pages 10-13 of its decision, the tribunal deals specifically with the 2004 elections and the general conclusion of the reports it quotes is that the 2004 elections was largely free of violence. I would strongly dispute this point, as I would have provided the tribunal with reams of information from past reports from Amnesty International & US State Reports which state that political violence is at its peak in the period leading to and just after General and Presidential elections and that the UNP and the PA are the chief perpetrators of this electoral violence.

9. Overall the tribunal misinterpreted and or misunderstood the criterion we had to establish to be eligible for a grant of the visa in that it failed to consider our claims and the evidence in support of these claims. And it also failed to deal with and or consider the case as presented and or the claims of [sic] us.

I say the tribunal is wrong when it concludes at page 14 of its decision “the tribunal is not satisfied that reports of violence either on the night of the elections or within a month of them would have changed the reaction of the police simply because another party was in power.” This was in reference to whether I reported the incidents to the police.

I again say that there are a number of reports from reliable sources such as US State Reports and Amnesty International which confirm that local police know very well that the government in power controls their future destinies such as where they will be stationed and prospects for promotion and subsequently it is in the interests of these police to look after the interests of the government of these police to look after the interests of the government in power and that is why I would not be guaranteed any protection.

CONSIDERATION

15                  The appellant cannot seek merits review of the Tribunal’s findings of fact in these proceedings. In order to obtain the relief sought in the notice of appeal the appellant must establish that the Tribunal’s decision was affected by jurisdictional error, that is a failure to exercise jurisdiction or in excess of jurisdiction, and that the Federal Magistrate erred in dealing with that particular matter.

16                  Undoubtedly, if the Tribunal misconstrued any of the criteria prescribed by the Migration Act 1958 (Cth) (“the Act”) or the Migration Regulations 1994 (Cth) (“the Regulations”) or in effect failed to ask the question which the Act or Regulations required to be asked, jurisdictional error will occur. The relevant principles are conveniently set out by Kenny J in Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558.

17                  I can find no basis for considering that the Tribunal misconstrued its task or failed to address the correct inquiry. The appellant submitted that the Tribunal misunderstood the meaning of persecution and “serious harm” for the purposes of the Refugees Convention and s 91R of the Act in finding that the harm that the appellants experienced in the past did not amount to serious harm. In my view the Tribunal did not misunderstand the meaning of either of those terms within the meaning of the Refugees Convention or the Act. It was open at all times to the Tribunal to find that the threats and harassment alleged by the appellant did not amount to serious harm: see generally VBAS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 212 at [17] – [28].

18                  The Tribunal simply did not accept the appellant’s claims concerning the incidents following the elections in April 2004. It was not satisfied that he was ever harmed as he alleged. The appellant also submitted the Tribunal failed to consider whether the facts as it found them to have occurred led to the conclusion that the appellants had a well-founded fear of persecution for a Refugees Convention reason. However, it is clear to me that the Tribunal did consider the findings of fact and addressed the proper question whether the appellants had a well-founded fear of persecution. The appellant also submitted that the Tribunal misunderstood what follows from its finding that the persecution did not have an “official” quality. But, as was noted by the Federal Magistrate, this submission did not appear to relate to any findings of the Tribunal in the present case.

19                  The appellant submitted that the Tribunal acted in breach of the rules of natural justice by failing to give him an opportunity to respond to adverse material comprising the country information in relation to the 2004 elections cited in the Tribunal’s reasons and referred to above. The appellant says that had he been notified of this material he would have provided the Tribunal with information about election-related violence in Sri Lanka.

20                  In my view the Tribunal did not deny any procedural fairness to the appellant. The appellant was given the opportunity to provide the Tribunal with material in support of his claims. At the hearing the appellant provided the Tribunal with a number of newspaper clippings and other material relating to political killings and election-related violence. Insofar as the country information cited by the Tribunal was relied upon, in my view the Tribunal was not required to provide the appellant with an opportunity to comment on its assessment of that country information by reason of the operation of s 424A(3)(a) of the Act and I refer to a number of cases including Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at 598-600; VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]–[14] and [21]; WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [42]–[46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [20]–[30]; and VJAF v Minister for Immigration and Multicultural Affairs [2005] FCAFC 178, at [15] to [16].

21                  It appears clear that s 424A is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with and excludes other common law principles: s 422B and see SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 148 FCR 302 and Lay Lat v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 61 at [60]–[70].

22                  It seems to me that one nevertheless does not have to consider in much detail the operation of those particular provisions here because the Tribunal knew of the difficulties in Sri Lanka and the political realities in relation to election-related violence but based its decision upon factual findings relating specifically to the appellant’s situation. Moreover, in referring to the country information, the Tribunal was aware that whilst the problem of electoral violence was diminished by 2004, this certainly was not something which could be taken for granted in the future. The Tribunal quoted from a passage which said:

Compared to the two previous elections, the scale and gravity of the problems was greatly diminished during the 2004 general election. While this is to be welcomed, it must also be stressed that there are no grounds for complacency particularly as this may give rise to false hopes that the disturbing features of the 2000 and 2001 elections will not re-occur. Although the most serious incidences of violence originated with the LTTE, it must not be forgotten that over two thousand cases of election-related violence were reported. This grim statistic underlines once again the continuing fragility of democracy in Sri Lanka.

23                  In addition to the above natural justice issue, the appellant alleged for the first time in submissions before me at the hearing that the Tribunal member did not allow the appellant to complete the answers to questions the member asked and the member asked questions before the appellant completed the answers to questions, and [so] confused the appellant.

24                  This matter was not raised before the Federal Magistrate, and the appellant told me that the complaint he now makes only come to his mind when he listened to the tape of the Tribunal proceedings, presumably done for the purposes of this hearing before me.

25                  As this matter was not before the Federal Magistrate I do not consider it is an appropriate complaint for me to consider. In any event, it does not seem to me probable that the appellant had any real difficulty before the Tribunal, or he would have raised his concerns then or before the Federal Magistrate. Further, there is certainly no evidence before me that natural justice was not accorded to the appellant, and I am not prepared on the basis of the appellant’s submission before me to assume that natural justice was not accorded.

26                  For the reasons stated, therefore, the appeal should be dismissed with costs.

Associate:

Dated: 4 September 2006