FEDERAL COURT OF AUSTRALIA

MZXJO v Minister for Immigration and Citizenship

[2007] FCA 1156

MZXJO v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 475 OF 2007

TRACEY J

6 AUGUST 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appeal be dismissed with costs fixed at $2,000.00.

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

REASONS FOR JUDGMENT

BACKGROUND

1                     This is an appeal against a judgment of a Federal Magistrate dated 22 May 2007, dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 March 2006:  see [2007] FMCA 760.  The Tribunal had affirmed a decision of a delegate of the first respondent (“the delegate”) to refuse to grant the appellant a protection visa.

2                     The appellant is a citizen of Sri Lanka who arrived in Australia on 30 August 2005.  He entered on a tourist visa.  On 13 October 2005, the appellant applied for a protection visa claiming that he feared persecution from political opponents as a result of his active role as an independent candidate and supporter of the United National Party (“the UNP”).  The appellant claimed that following the UNP’s election loss to the People’s Alliance (“the PA”) he was threatened and pursued by supporters of the PA, forcing him to flee his home.  Upon returning 18 months later, the appellant claimed that he was still the subject of threats from PA supporters, and local authorities refused to offer protection.  The appellant then decided to leave Sri Lanka. 

3                     In refusing the visa application, the delegate said:

“Despite the applicant standing for election in the 2001 and 2004 elections the number of votes he received indicates to me that he is a grass level supporter of the UNP.  He may have worked as a volunteer for the UNP during the 2001 and 2004 elections, but I do not accept that he has a significant profile to be of interest to any other political party.  However, if he did face any harassment or threats he could seek the assistance of the State.”

4                                             The application for a protection visa was refused on 6 December 2005.

REFUGEE REVIEW TRIBUNAL

5                     On 14 December 2005 the appellant applied to the Tribunal for review of the delegate’s decision.  The appellant renewed his claim that he had a well-founded fear of persecution as a result of his involvement with the UNP political organisation.

6                     While the Tribunal accepted that the appellant had a degree of involvement in Sri Lankan politics from 2000, it noted that, on the available evidence, the appellant appeared to have had a relatively low political profile.  Further, the Tribunal held that many of the appellant’s claims were vague and non-descriptive, and, although it was accepted that violence did occur following the elections in the period in question, the appellant was not directly involved in any of these incidents. 

7                     In affirming the decision of the delegate on 9 March 2006, the Tribunal did not accept that the appellant would face a real chance of serious harm amounting to persecution based on his political opinion, and did not accept that local authorities would fail to protect him should he be threatened as a result of his political activities.

FEDERAL MAGISTRATES COURT

8                     By way of amended application to the Federal Magistrates Court dated 31 August 2006, the appellant sought judicial review of the Tribunal’s decision.  The grounds relied on by the appellant in this amended application alleged that the Tribunal erred by:

(a)                failing to find that the harm suffered by the appellant amounted to persecution under s 91R of the Migration Act 1958 (“the Act”);

(b)               failing to address the level of state protection available in Sri Lanka;

(c)                failing to ensure that the hearing was fair and according to substantial justice pursuant to s 420 of the Act;

(d)               failing to refer to all documents tendered by the appellant as evidence to support his claims of persecution; and

(e)                failing properly to conduct its review under ss 414 and 415 of the Act.

9                     The Federal Magistrate held that the Tribunal had directed itself correctly as to the meaning of the terms “persecution” and “serious harm” as used in s 91R of the Act.  It was open to the Tribunal, on the facts, to conclude that the appellant did not face serious harm and persecution in Sri Lanka.  His Honour noted that any challenge to the Tribunal’s findings under s 91R of the Act would constitute merits review and was therefore unsustainable.  He said, at [25] that:

“In my view this particular relied upon by the Applicant is misconceived.  I accept as submitted by the First Respondent that effectively a challenge is made to the reasoning and findings of fact of the Tribunal which cannot be challenged on the basis of any alleged misinterpretation of s.91R of the Act.  The findings were, as submitted by the First Respondent, reasonably open to the Tribunal and the court is not permitted to undertake a review of the merits when considering this application.  It follows that this particular cannot be sustained.”

10                  The Federal Magistrate examined the Tribunal’s approach to the question of whether state protection was available to the appellant, finding that the Tribunal had properly dealt with this issue, and was entitled to rely upon country information when forming its conclusions.  His Honour said, at [30] that:

“In my view the manner in which the Tribunal dealt with the question of state protection does not demonstrate any error.  The Tribunal was entitled to consider country information and to then further draw a conclusion concerning the availability of state protection.  Simply because the Tribunal accepts that an Applicant has been threatened, does not of itself mean regardless of the degree and nature of the threats or whether information exists as to instability throughout the county, that state protection is not available.  Nor does it mean that the Tribunal is not entitled as a matter of fact to draw a conclusion based on county information that Sri Lanka does "have government policies against (sic), in laws and law enforcement institutions, to address political violence and does control it to a degree consistent with international standards.”

11                  The Federal Magistrate rejected the appellant’s claims to have been denied natural justice.  He referred to s 422B of the Act which provides that Division 4 of Part 7 of the Act contains an exhaustive statement of the requirements of natural justice, citing the Full Court decisions in Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62.  His Honour continued at [45]:

“I accept as submitted by the First Respondent that the Tribunal, as part of its fact finding process, has simply made findings in a manner free of jurisdictional error and has not denied the Applicant procedural fairness.  In my view this ground effectively seeks to revisit the evidence and/or assert that other evidence should have been given further consideration by the Tribunal.  That in my view is insufficient to support this ground and accordingly the ground should fail.”

12                  The Federal Magistrate found that the Tribunal had, at all times, complied with s 424A of the Act (which appears in Division 4), and proceeded in a manner free of jurisdictional error.  In particular, his Honour had regard to the Tribunal’s treatment of evidence provided in support of the appellant’s claim, noting that the Tribunal had taken into account the allegations made by the appellant and had given proper attention to the evidence before it.

APPEAL TO THIS COURT

13                  On 1 June 2007, the appellant filed a notice of appeal in this Court.  The grounds of the appeal are:

“a)       The learned Magistrate erred in accepting the first respondent’s submission that the misinterpretation of section 91R of the Migration Act 1958 does not lead to jurisdictional error.

b)         The learned Magistrate erred in concluding the manner in which the second respondent dealt with the question of state protection does not demonstrate any jurisdictional error when in fact the second respondent admitted that the appellant has been threatened and ‘even sum(sic)  incidents are unable to be prevented”.  The finding that the appellant could avail the state protection was not supported by the evidence and demonstrates the fixed mind set of the second respondent which could be regarded as an unreasonable finding or the worst a finding tarnished with apprehended bias.

c)         The learned Magistrate’s finding that the second respondent can selectively use the country information to support its finding without considering the country information which was favourable to the appellant was a wrong approach.  The appellant submits that this was not an exercise of effectively seeking to revisit the evidence but an act of jurisdictional error by the second respondent for want of unreasonableness/no evidence.

d)         The learned Magistrate erred in not finding that the second respondent breached s.420 of the Migration Act but not ensuring the process of review was fair, just and according to substantial justice and merit of the case.

e)         The learned Magistrate ignored that the Tribunal has not considered the integer claims.”

No particulars were provided.  Some of the grounds were not advanced before the Court below.

CONSIDERATION

14                  The appellant appeared in person.  He had the assistance of an interpreter.

15                  The appellant advised the Court that he was not the author of the notice of appeal.  It was drawn for him by a legal friend acting on his instructions.  The appellant advised the Court that he had not read or had translated for him either the Tribunal’s reasons or those of the Federal Magistrate.  He said that he gave instructions for the drawing of the notice of appeal on the basis of what other people had told him appeared in those reasons.

16                  I asked the appellant to identify the integer claims to which he referred in ground (e).  He referred to a number of claims which do, in fact, appear in the Tribunal’s reasons both in the narrative and findings sections.  This was one of the grounds that was not argued before the Federal Magistrate and therefore it is not open to the appellant to argue, in any event, that the learned Magistrate ignored a failure on the part of the Tribunal to consider such claims.

17                  The appellant was unable to assist the Court by pointing to any passage in the Federal Magistrate’s reasons in which he accepted a submission by the Minister that a misinterpretation of s 91R of the Act did not lead to jurisdictional error.

18                  The appellant complained about a lack of time to prepare for the hearing.  I reject this claim.  He was notified of the fixture in mid June 2007.  On 19 July 2007 he was sent the appeal book and a covering letter explaining the procedural steps which needed to be taken in advance of the hearing.  He said that he had not had sufficient time to assemble documents going to the current situation in Sri Lanka.  He had consulted a solicitor who had advised him that it would take time to obtain such material.  As I sought to explain to the appellant such material would not have assisted in establishing legal error on the part of the Tribunal or the Federal Magistrate.

19                  I have read the Tribunal’s reasons and those of the Federal Magistrate.  I can detect no legal error in the learned Magistrate’s reasons. 

20                  The appeal should be dismissed with costs.

Associate:

Dated:         6 August 2007