FEDERAL COURT OF AUSTRALIA

MZXFW v Minister for Immigration and Multicultural Affairs [2006] FCA 1567

MZXFW, MZXFX and MZXFY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 715 OF 2006

RYAN J

13 NOVEMBER 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the first respondent’s costs, to be taxed in default of agreement.

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 by Hartnett FM, on 9 June 2006, dismissing an application filed on 30 December 2005, for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), made on 25 November 2005.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”), to refuse to grant protection visas to the appellants. 

2                     The first and second appellants, who are husband and wife, are citizens of Sri Lanka, and arrived in Australia on visitor visas, expiring on 14 September 2001.  On 25 October 2001, the appellants applied to the Department of Immigration and Multicultural Affairs (“the Department” for protection visas.

3                     Their child was subsequently born in Australia on 13 December 2001, and was added to the application for protection visas, and is the third appellant in these proceedings.  Only the first appellant made a substantive claim to be entitled to a protection visa, and the wife and son rely upon his claim.  On 4 February 2002, a delegate of the Minister refused the appellants’ application.  That refusal is hereafter called “the Minister’s decision”.  On 26 February 2002, the appellants applied to the Tribunal for a review of the Minister’s decision, and, on 25 July 2003, the Tribunal published a decision, dated 30 June 2003, affirming the Minister’s decision. 

4                     On 22 August 2003, the appellant filed an application for an order nisi in the High Court, in respect of the Tribunal’s decision.  The High Court remitted the application to this Court on 23 February 2004 and, on 21 June 2004, it was ordered that the application be transferred to the Federal Magistrates Court.  On 5 May 2005, McInnes FM set aside the Tribunal’s decision by consent, and the matter was remitted to the Tribunal, differently constituted, to be heard and determined according to law. 

The second hearing before the Tribunal

5                     The appellants’ claims were set out in their submission in support of their visa applications which had been prepared and lodged with the Department.  The relevant facts were also set out in the Minister’s decision, and other material available to the Tribunal from a range of sources, including country information.

6                     The first appellant (“the appellant”) claimed that, by reason of a political opinion imputed to him as a supporter of the United National Party (“the UNP”), he had been harassed and threatened and would be persecuted if he were to return to Sri Lanka.  The appellant submitted that he had been a strong and ardent supporter of the UNP, having attended rallies and meetings, handed out pamphlets, made financial contributions and designed advertising material for that party.  The Tribunal considered that the question which it was required to determine was whether the appellant’s fear of persecution was objectively well-founded, according to the criteria to be found in the 1951 Refugees Convention as amended by the 1967 Refugees Protocol. 

7                     Before making an assessment of the appellant’s claims, the Tribunal noted the importance of adopting a reasonable approach in reaching a finding on credibility. It referred, in particular, to the observations of Foster J in Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, at 482.  The appellant claimed that, after his return from a visit to Australia, in February 2001, he had been heavily involved in pre-election campaigning for the UNP and for Mr Kumarasinghe, who had been the UNP candidate for the seat of Ratamalana in the 1994 elections.  The Tribunal accepted that the appellant had been a supporter of the UNP since before the 1994 elections.  However, it did not accept that he had been a member of the party, finding rather, in the light of his evidence, that he had only been a supporter of the UNP.  The Tribunal was satisfied that one of the reasons why the appellant had supported the UNP was that he had received a lot of advertising business from the former UNP Government through Mr Kumarasinghe.

8                     The appellant claimed that, after the general elections in 1994, he had been subjected to threats and harassment from supporters and members of the People’s Alliance (“the PA”).  He said that he had been asked by Mr Kumarasinghe to help the UNP candidate for Ratamalana in the 2000 general elections, Mr Silva, and by other UNP supporters to undertake its advertising for the election campaign.  The appellant claimed that it was common knowledge that he and his company had designed all the UNP banners and posters.  As a result, he asserted, he had received numerous death threats by telephone and letter to his business and home, and that much of his advertising material had been defaced with PA slogans and destroyed.  He also claimed that he had been threatened and attacked on a number of occasions.

9                     The Tribunal accepted that, during the election, the appellant had provided advertising material for Mr Kumarasinghe, UNP headquarters, and people referred to him by Mr Kumarasinghe, and that these connections had provided him with a lot of business.  However, it noted that the appellant had not provided services exclusively to the UNP, referring to his claims that he had prepared advertisements, although on a small scale, for the PA and other parties.  The Tribunal was satisfied that the appellant had not worked exclusively for the UNP, and that outside election periods he had continued to provide business services to that party.  It was part of the appellant’s case that the PA had retained power after the October 2000 general elections although, Mr Silva, the UNP candidate, had succeeded in winning the seat of Ratamalana.

10                  As a result, the appellant claimed, the PA would reek revenge on known UNP supporters, and on one occasion, members of the army had come to his house and taken him to their headquarters on the pretext of questioning him in relation to a Tamil family to whom he had let a house.  He alleged that, whilst at the army headquarters, false allegations had been made against him and he had been threatened with death if he did not pay 150,000 rupees to those making the threats.  He also claimed to have been told that one of his Tamil tenants had a connection with the Liberation Tigers of Tamil Eelam (“the LTTE”) and that, given his relationship with his Tamil tenants, he would have been aware of this.  The appellant claimed that it was “obvious” that the army officers were acting on the orders of the PA and he paid the money in order to be released.

11                  The Tribunal accepted that, in the 1994 and 2000 election campaigns, the appellant may have experienced some trouble and may have received some threats as a result of advertisements which he had prepared for the UNP, and that, while campaigning, he may have been threatened when confronted by supporters of the PA.  However, it noted, the appellant did not claim that anything of consequence had resulted from these threats.  The Tribunal, in its reasons, referred to s 91R(2)(a) of the Migration Act 1958 (Cth) (“the Act”), and to the decision of this Court in Minister for Immigration and Multicultural and Ethnic Affairs v VBAO of 2002 [2004] FCA 1495, per Marshall J.  The Tribunal was satisfied that the threats which the appellant had received during the two elections had not endangered or put in jeopardy his life or liberty.

12                  The Tribunal found the threats against the appellant to have been “patently hollow”, given that he had continued to participate in political activities during both elections without experiencing any physical harm.  The Tribunal did not accept that the appellant had continued to be subjected to threats after the 1994 election until he left Sri Lanka in September 2001.  Nor did it accept that he had received threatening letters or telephone calls, as it found the evidence in relation to the frequency of the threats to be “confusing and contradictory”.  In relation to the death threats, the Tribunal did not accept that the PA would have waited until 1998 before it demanded money from the appellant, or that it would have continued to threaten him and demand money over the next two years if its earlier threats had not, as the appellant claimed, extracted any payment.

13                  As well, the Tribunal did not accept that the appellant had been assaulted and dragged from his car after two or three cars had intercepted him after he had left his then fiancée at her home.  It regarded the appellant’s evidence as inconsistent, and noted that, in his initial submission to the Department there was no reference to an assault before his marriage.  Nor did the Tribunal accept the appellant’s account of an incident in which he claimed that his vehicle had been stopped and blocked by other cars, and he had been threatened with harm, unless he supported the UNP, after which he had been hit on the head and other parts of his body.  That incident, the Tribunal noted, had not been mentioned in the appellant’s initial submission to the Department.

14                  Similarly, the Tribunal did not accept that an extortionate demand had been made on the appellant at the Army headquarters in 1998, as no such demand had been detailed in his initial submission or in his interview with the delegate of the Minister.  The Tribunal did not accept that after he had left Sri Lanka, the appellant’s family had continued to receive telephone calls asking where he was, or that his brother had been assaulted and questioned about his whereabouts.  The Tribunal also declined to attach any weight to a letter provided by Mr Srinath Kumaratunga, as it was inconsistent with evidence provided by the appellant.  After considering the evidence as a whole, the Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations, and therefore declined to grant protection visas to the appellants.  Accordingly, on 25 November 2005, the Tribunal affirmed the Minister’s decision. 

The hearing in the Federal Magistrates Court

15                  The appellants applied to the Federal Magistrates Court on 30 December 2005 for a review of the Tribunal’s decision.  That appeal was heard on 17 May 2006.  Hartnett FM found that the Tribunal had discharged its obligations under s 424A of the Act, when it wrote to the appellant on 14 October 2005, and 11 November 2005, and clearly identified in those written communications the inconsistencies in the appellant’s evidence which were of concern to the Tribunal.  The learned Federal Magistrate noted that the Tribunal had sought clarification from the appellant of the inconsistencies in his evidence and claims, and had provided an opportunity to respond within a time frame that accommodated his request for extra time.

16                  Her Honour held that the Tribunal’s factual findings were open to it on the evidence placed before it;  see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.  The learned Federal Magistrate noted that there was no express or implied requirement that the Tribunal use information given pursuant to a request under s 424A of the Act only for the benefit of the appellant;  see VBAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2005.  She concluded that the Tribunal had comprehensively considered and dealt with each of the integers of the appellant’s claim and that the Tribunal’s findings were based largely on issues of credibility.  In her view, the Tribunal’s findings were open to it on the basis of the evidence, and had been made after consideration of matters that were logically probative of the issue of credibility;   Kopalapillai (supra, at 559).  Accordingly, after reserving judgment, her Honour, on 9 June 2006, dismissed the application with costs.

The appeal to this Court

17                  By notice of appeal filed in this Court on 28 June 2006, the appellants appeal from the whole decision of Federal Magistrate Hartnett on the following grounds:

‘1.        The learned Magistrate has not explained how the decisions and precisely and importantly which part of the decisions in a) Kopalapillai v MIMA 86 FCR 547 referred to in two places in her judgment and the decision in VBAC v MIMIA 2003 FCA 2005 support her findings or reasons.

2.         The appellants have sought to question the manner in which the assessment of the claims was made by the Tribunal and particularly in relation to the sect.424A notice in that

(a)       In the relation to the assault incident before marriage the Tribunal said “however it finds this does not address the concerns the Tribunal identified in its letter”’

(b)       In relation to the extortion demands by the PA/army officers the Tribunal said, “however the Tribunal finds this does not address the Tribunal’s concerns.

(c)        In relations to the contract given to the underworld to deal with the appellant, that the response to the sect.424A notice contain general information that was not acceptable to the tribunal and consequently the finding that the Tribunal does not accept the substance of the appellants’ claims.

3.         Importantly, the Tribunal has not inquired of the appellant as to how his response to the sect.424A notice does not address the concerns of the Tribunal, neither has the Tribunal given its reasons and indicated in what manner its concerns were not addressed.

4.         The learned Magistrate neither addressed nor answered the concerns and the issues raised in the application/amended application and particularly if the Tribunal had been fair and just in its process of discrediting and consequently not accepting the claims and also if it had acted in breach of according substantial justice in the assessment of the claims and the sect.424A notice.’

18                  By the same notice of appeal, the appellants seek the following orders;

‘1.        The appeal be allowed and the appellant’s application for an order of review against the decision of the RRT be allowed.

2.         The decision of the RRT be quashed.

3.         The application by the appellant for the protection visa be remitted to the RRT to be heard and determined according to law.

4.         The respondents pay the costs of the appellants of the proceedings below and these proceedings.

5.         Such further or other orders as the Court may deem just.’

19                  That notice of appeal was supplemented by a document filed in this Court on 9 November 2006, and it recites under the heading, “Refugee Review Tribunal”;

‘After the hearing the Tribunal sent me a notice and to which I replied.  This related to the assault incident, the extortion demand and about the contract been given to the underworld to get rid of me.  The Tribunal advised me that inconsistencies, according to the Tribunal, may lead the Tribunal to question the truth of my claims.  I replied to these inconsistencies, according to the Tribunal, in the best and honest way I could. 

However, the Tribunal in its decision went on to say that it has considered my reply to the notice, given to me but finds that the reply does not answer its concerns, the Tribunal Identified in its letter. 

This is a mistake because if the notice that the Tribunal gave to me was important as far as the truth of my claims was concern in that the Tribunal was going to hold it against me, then either before it made its decision or in its decision it should explain why it found that my answers did not address its concerns.

This is an Important point in my case as the Tribunal was going to hold that I was not an honest witness but yet it failed to explain why it was finding that I was not an honest witness. 

The Magistrate made the observation that the Tribunal is obliged to seek clarification from the application of discrepancies in his evidence and claims and did so.  This is not so because if the Tribunal sent it had concerns which according to it were not addressed it ought to have sought clarification. 

The Magistrate judgment appears to be very general, and does not seem to answer my specific points.  I believe that I have raised a very valid and substantial point, which shows that I have not been treated fairly in the procedure that the Tribunal adopted.  I ask this court to consider this and decide in my favour.

Finally, election violence is very common in Sri Lanka.  Even the information that the Tribunal referred to on page 25 of its decision is clear indication of the violence in Sri Lanka, quite apart from the war between the government and the LTTE.  I think that the Tribunal got it wrong to make a decision in the way it did without quoting the violence in Sri Lanka.  The two things are quite contrary and apposed.  The finding is therefore not right.’

20                  The principal complaint, as it appeared from the oral submissions on the hearing of the appeal which were conveyed through an interpreter, is that the Tribunal did not accept the answers which the appellant had furnished in response to the notice pursuant to s 424A of the Act.  The appellant expanded only briefly on the matters raised as grounds in the notice of appeal, and in the written submission which I have reproduced at [19] above.  The appellant also complained that if it were not satisfied with his responses, the Tribunal should have requested him to expand or clarify them.  However, the process envisaged by s 424A is, as Ms Symons of Counsel for the Minister submitted, a finite one.  Unless there is further or fresh information, which the Tribunal considers would be the reason, or part of the reason for affirming the decision under review, there is no obligation to afford an applicant an opportunity to make a further response.

21                  Indeed, I take leave to doubt whether there was any obligation, in the circumstances of this case, to call on the appellant under s 424A at all, because what the Tribunal gave notice of was not information in its possession, but rather its perception of inconsistencies in the evidence adduced on behalf of the appellants.  That, in my view, was not information of the kind contemplated by s 424A.  However, be that as it may, the notice was given, a response was made, and for the reasons which I have indicated, there was no obligation on the Tribunal to prolong that process by affording the appellant an opportunity to elaborate on his responses.  The Tribunal’s decision turned essentially on its assessment of the credibility of the appellants’ claims.

22                  Credibility, as McHugh J has made clear in Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 74 ALJR 405, is essentially a matter for the Tribunal and, unless it can be demonstrated that the Tribunal, in coming to a view about the ultimate question of whether an applicant has a well-founded fear of persecution for a Convention reason, has failed to take into account a relevant consideration, has taken into account an irrelevant consideration, or has committed some other error of law, or disregarded a mandatory procedural requirement, no relief is available by way of judicial review.  That, I consider, was the principle which informed the decision of the learned Federal Magistrate which has been impugned by the present appeal.  Accordingly, I have been unable to discern any error in that decision.  For these reasons, the appeal will be dismissed with costs. 

Associate:

Dated:         23 November 2006