FEDERAL COURT OF AUSTRALIA

MZYCP v Minister for Immigration & Citizenship [2009] FCA 1287

Migration Act 1958 (Cth) s 424A

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 

MZYCP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

VID 462 of 2009

SUNDBERG J

11 NOVEMBER 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The appeal be 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.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          This is an appeal from the decision of the Federal Magistrates Court dismissing an application for review of the decision of the Refugee Review Tribunal affirming the decision of the first respondent’s delegate not to grant the appellant a protection visa.

2                          The appellant’s claims and the material on which he relied are set out in detail in the Tribunal’s reasons for decision. It is not necessary to repeat them. They are also summarised in the decision of the Federal Magistrate.

3                          There are four grounds of appeal in the appellant’s amended notice of appeal. The first is that the Magistrate erred in holding that the Tribunal had not reached the point where findings with respect to the ability of a State to protect the appellant became a relevant issue. It was said that by not assessing the ability of the State (Sri Lanka) to protect the appellant, it had fallen into error.

4                          The Magistrate said this complaint had to fail because the appellant had not succeeded in showing that there was any real risk of serious harm for which the government ought to provide protection. The Tribunal had not reached the point where findings with respect to the ability of the State to protect him became a relevant issue.

5                          At [16] and [17] of its reasons the Tribunal properly directed itself as to the requirement that an applicant’s fear of persecution for a Convention reason be well‑founded. It referred to the additional requirement that an applicant must be unable, or unwilling because of that fear, to avail himself or herself of the protection of the country of nationality. After dealing with each of the appellant’s claims and the material on which he relied in support of them, the Tribunal said at [100] that if he were returned to Sri Lanka now or in the reasonably foreseeable future, there was no real chance he would face any serious harm from his political opponents. It concluded that the appellant did not have a well‑founded fear of persecution within the meaning of the Convention.

6                          It is clear, as the Magistrate held, that on the findings recorded at [5] above, there was no need for the Tribunal to consider whether or not the government of Sri Lanka was willing or able to protect the appellant against persecution involving serious harm. As I have said, that is an additional matter an applicant has to establish, once he has shown that he has a well‑founded fear of persecution. The Magistrate has committed no error in his treatment of this issue. This ground of appeal has no substance.

7                          The second ground of appeal is that the Magistrate erred in holding that making a decision based on country information that is “not true” will not trigger an error of law or a jurisdictional error. This does not appear to have been put to the Magistrate. The only submission recorded in his Honour’s reasons is that the Tribunal did not have regard to country information.

8                          The appellant did not identify what country information was not true. It may be the information to which the Tribunal referred at [71]. There it said that the information showed that election campaigning could get very heated and willing, and may involve death threats which, however, appeared to be simply idle threats made in the heat of the campaign and were not carried out. Assuming the appellant claims that the idle threats part of that statement was not true information, as to which there is no evidence, the Tribunal’s reliance on it does not establish error. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] the Full Court said:

There can be no objection in principle to the Tribunal relying on “country information”. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to “guidance”, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true. The question of the accuracy of the “country information” is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review.

Although the present ground of appeal appears not to have been put to the Magistrate, he set out the above passage in rejecting the submission that was put to him. It should have been apparent to the appellant that this ground of appeal had no prospect of success.

9                          In relation to this second ground of appeal the appellant refers to s 359A of the Migration Act 1958 (Cth) in the sentence – “in the absence of a notice under s 359A, a finding based on untrue information [is] bound to trigger jurisdictional error”. Doubtless the intention was to refer to s 424A of the Act. That section, however, has no bearing on this ground of appeal, particularly given that country information will usually fall within the exception in s 424A(3)(a) – “information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. In any event, as I have said, there is no evidence that any country information relied on by the Tribunal was “not true”. This ground of appeal must be rejected.

10                        The third ground of appeal is that the Magistrate erred in accepting the Tribunal’s conclusion that the threats faced by the appellant after 1999 were “idle threats”. The appeallant submitted that a single incident is sufficient to trigger the Convention grounds, and the Tribunal erred in concluding that there “should be multiple events to trigger the requirements for a protection visa”.

11                        What the Tribunal said about “idle threats” was as follows:

The applicant has claimed that he received some threats from his direct political opponent and from supporters of this political opponent during the 2004 provincial election campaign. However, in his statement to the Department dated 29 January 2008 the applicant claimed that he did not take these threats seriously and that he continued to campaign despite these threats. Based on the applicant’s own evidence that he did not take these threats seriously, the Tribunal finds that these were idle threats and that the makers of these threats did not intend to carry out these threats in any way.

The appellant’s statement bears out the Tribunal’s observation. It was clearly justified in those circumstances in coming to its “idle threats” conclusion. The Magistrate was of that opinion, and no error has been shown on his part.

12                        The claim that the Tribunal concluded that there should be multiple events to trigger the requirements for a protection visa is baseless. The Tribunal did not say that. This ground of appeal is dismissed.

13                        The fourth ground of appeal is that the Tribunal did not take into account that the appellant’s political party was in power from 2001 until 2004. It was said that by failing to assess this important fact, the Tribunal had not discharged its duty in accordance with law. The Magistrate was of the opinion that the fact that the appellant’s party had been in power for those years was not such a significant fact that one could conclude that the Tribunal was in error in failing to mention it. In fact the Tribunal did record the appellant’s claim that during the 2001 general election he worked as a vote counting agent and his party was successful, with its leader being elected prime minister, and that government was dissolved in 2004 and general elections were held in 2004.

14                        At [99] of its decision the Tribunal said it:

has found that despite the applicant’s long term involvement in the political process in Sri Lanka, including his active involvement in the UNP for over 30 years and having been a UNP candidate for election on two occasions, he has not suffered any serious harm in the past in Sri Lanka apart from the two isolated incidents that both occurred in January 1999. He has been able to participate in the UNP, stand as a candidate for that party, organise and attend political rallies and generally maintain a high profile in his local area as a UNP activist and potential candidate for election. Accordingly, the Tribunal finds that if the applicant returned to Sri Lanka now or in the reasonably foreseeable future there is no real chance that he would face any serious harm from his political opponents, including his direct political opponent in his local area, because he is an active member of the UNP or because he is seen as a political threat to his local political opponents or because  he is active in politics generally …

Given the tenor of this passage, I am unable to accept that, having earlier recorded the matters set out at [13],the Tribunal should be treated as not having taken them into account simply because they were not repeated in the passage set out above. The fact that the matters were not set out again does not detract from the Tribunal’s findings that the threats received by the appellant, some of which he did not take seriously, had not discouraged his continued participation in politics between 1999 and 2007. In addition, the focus of the appellant’s claim were on alleged incidents in 1999, 2004 and 2007, and not on incidents in the period which the UNP was in government. This ground of appeal fails.

15                        None of the grounds of appeal having been upheld, the appeal must be dismissed.

Associate:

Dated:         11 November 2009