Applicant M41 of 2004 v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 The appellant, a national of Sri Lanka, arrived in Australia on 8 May 2003 on a business visa. On 30 May 2003 he applied for a protection visa. A delegate of the first respondent refused the application, and that decision was affirmed by the Refugee Review Tribunal (the Tribunal). 2 The essence of the appellant's claim before the Tribunal was an alleged fear of persecution by members of the United National Party (UNP) because of his past association and activities with the Sri Lankan Freedom Party (SLFP) and his support of the People's Alliance (PA) party. The Tribunal accepted that the appellant had been a member of those parties and had participated in party activities at a local level, and may have been subjected to some types of political harassment or intimidation. It did not accept the appellant's evidence with regard to serious death threats or physical assaults on his person. It concluded that the chance of the appellant coming to serious harm on his return to Sri Lanka was remote, and that he could reasonably relocate to Colombo where he had worked for many years and not suffered any harassment. Consequently the Tribunal found that the appellant was not a person to whom Australia had protection obligations under the Refugees Convention (Convention). 3 The appellant applied to the Federal Magistrates Court for review of the Tribunal's decision. Before the Magistrate he made general claims of jurisdictional error that essentially amounted to attacks on the Tribunal's credibility determinations and on the weight given to parts of his evidence. The Magistrate dismissed the application for review on the basis that the Tribunal had made findings of fact that were reasonably open to it. It concluded that the Tribunal had properly considered the appellant's claims and all the relevant issues. Consequently, the Magistrate held that the procedure followed by the Tribunal did not involve jurisdictional error or a denial of procedural fairness. His Honour also noted that the absence of jurisdictional error rendered the application out of time under s. 477(1)(a) of the Migration Act 1958. 4 Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 the appellant's appeal to this Court is heard by a single judge. 5 There are four grounds of appeal. The first is that the Magistrate erred in not holding that the Tribunal had failed to take into account a relevant consideration, namely the appellant's claim that he was at risk of persecution because of his association with a particular social group, namely members of SLFP and PA. 6 The amended application in the Magistrates Court made no social group claim. Nor is any such claim made in the appellant's Contentions of Fact and Law dated 25 May 2005 or in his Response to the Respondent's Contentions dated 9 March 2006, both filed in the Magistrates Court. There is no suggestion in the first respondent's Contentions of Fact and Law filed in the Magistrates Court that any social group case had been propounded by the appellant. The Tribunal's decision and the Magistrate's decision do not mention any such case. 7 It is not an admissible ground of appeal that the Magistrate failed to decide in the appellant's favour a matter that was not put to him for decision. 8 In any event, all the appellant does by this ground of appeal is to attach a social group tag to the primary matter he has agitated throughout, namely that he was at risk of persecution because of his membership of SLFP and PA. The Tribunal rejected that claim. It did not accept that he had been subjected to death threats or physical assault as he had claimed, and concluded that the chance of his coming to serious harm on return was remote. Independently of that, it held that he could safely relocate to Colombo. What the Tribunal said about the claim the appellant in fact put is an answer to the case he now seeks to put for the first time. 9 Apparently as part of this ground of appeal the appellant asserts that the Tribunal ignored or failed to consider five matters: (a) the reason why he relocated to Colombo; (b) his escape to Australia "associated harassment for a [Convention] reason"; (c) the "fear factor associated with [Convention] reasons, namely, physical and [mental] torture, and threats causing fear"; (d) that the Police do not actually protect people associated with SLFP; and (e) that the Police actually participated in persecution and its involvement with the governing political party. 10 As to matter (a), the evidence before the Tribunal was that because of threats, the appellant moved from his own house to his mother's house a short distance away, and travelled from there each day to Colombo where he worked. The Tribunal recorded this. The appellant did not say that he "relocated to Colombo" in the sense that he lived there. The Tribunal said: "whilst the applicant lived in a smaller town outside of Colombo, he has for many years worked in Colombo and commuted on a daily basis. The instance in which he says he was physically mistreated by supporters of the government candidate after the 2001 elections occurred in his home location, and not in Colombo where he worked. The Tribunal would therefore consider that even if (contrary to its findings above) the applicant did face Convention related persecution because of his political opinion in his home area, he could reasonably relocate to Colombo where he has not faced harassment, and where he had been able to obtain and maintain employment." There is no substance in complaint (a). 11 The import of complaint (b) is not clear. So far as I can attribute meaning to it, it seeks to revisit the issue decided against the appellant by the Tribunal, namely that he escaped to Australia because of Convention related harassment. Complaint (c) simply takes issue with the Tribunal's rejection of his claim about the level of his fear. The Tribunal did not accept that his mistreatment amounted to serious harm. The appellant seeks to argue with the Tribunal's decision on the facts under the guise of a claim that it failed to take into account a material consideration. Certainly the Tribunal did not ignore or fail to consider his fear of physical and mental torture and threats. It recorded his claim that he "was harassed and subjected to severe torture mentally and physically by the thugs of the UNP". The Tribunal then said it: "is not however satisfied the applicant was seriously assaulted, or that he was harassed or sustained harm significant enough to constitute 'persecution' under the Convention. In particular, it is not satisfied that he was 'severely tortured' after that election as suggested in his written statement." The written statement is that in which he claimed he had been subjected to "severe torture mentally and physically". 12 The Tribunal recorded the matters in (d) and (e). They were not ignored. After referring to a substantial body of country information the Tribunal said: "Whilst the applicant may have reported this incident to police as he claimed, the Tribunal is not satisfied police refused to accept a report or to take the matter seriously, or that their reaction to the complaint was influenced by the assertion that the incident was politically motivated. In reaching this conclusion, the Tribunal notes country information set out above suggests police have been directed by government to perform their duties impartially." Later the Tribunal said: "The Tribunal does not accept that crimes against opposition members and their supporters are not investigated…. The Tribunal … finds that even if the applicant was to be threatened or assaulted for political or any other reason, he would have access to a functioning police force, and would be able to avail himself of effective state protection, and would not be denied such protection because of his political opinions or perceived political opinion." … The Tribunal is not satisfied the mere fact of having reported an assault allegedly committed by a supporter of a government would expose the applicant to further risk as he claims. In reaching this conclusion the Tribunal again relies on country information referred to above, which indicates the current government has declared political violence will not be tolerated, and directed that police should act impartially." In the light of those passages, it is apparent that the appellant really means by complaints (d) and (e) is that the Tribunal did not accept the whole of his story. 13 The second ground of appeal is that the appellant was denied natural justice in that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 in relation to country information, especially DFAT information. However that provision is not available to the appellant because of sub‑s (3), which excludes from the ambit of sub‑s (1) 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." The country information in question fits that description. See WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44]‑[46]; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [128]; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [64]‑[71] and [126]‑[128]. 14 The appellant also complains of a denial of natural justice in that he was not given an opportunity "to provide further/better documents/respond to the Tribunal. The Tribunal failed to give sufficient, requested, time to provide further documents before & after the hearing". There are no particulars of this complaint and no evidence to support it. Further, the application to the Tribunal was made after the commencement of the Migration Legislation Amendment (Procedural Fairness) Act 2002. The applicant has not pointed to any respect in which the modified rules of procedural fairness, which constitute an exhaustive statement of the requirements of natural justice, were not adhered to by the Tribunal. In his written submissions the appellant instead claims that the Magistrate denied him natural justice by failing to provide sufficient time for him to provide further documents. This appears to be a reference to the Magistrate's refusal to accept additional material from the appellant. His Honour described this as material demonstrating what "he would claim to be current instability in Sri Lanka, including the alleged murder of a senior police officer". The Magistrate did not say that he refused to accept the material. However, according to the first respondent's counsel, who appeared at first instance, his Honour did refuse to accept it. That refusal was proper. Accordingly this additional complaint, which is not mentioned in the grounds of appeal, has no basis. 15 The third ground of appeal is that the Tribunal failed to consider the appellant's application for review "for the purposes of ss 36, 65 and 424A of the Migration Act 1958". This complaint was not put to the Magistrate as an independent ground. Rather it was contended that: "The Tribunal misinterpreted the convention reason and failed to undertake its mandated task of correctly applying the convention reason. It has failed to understand the deeper significance of the applicant's claims. It failed to discuss the relevant country information with the applicant and how that [was] information likely to be the reason or the part of the reason for the refusal of the application. Consequently, the Tribunal has failed to undertake its mandated task of correctly interpreting sections 36, 65 and 424A of the Migration Act." (Emphasis added.) Because the Magistrate rightly rejected the complaints in the first three sentences, he did not deal with the consequential claim. Presumably because the third ground of appeal is merely consequential in the sense described, the appellant does not repeat it under the heading "Ground of Appeal" in his written submissions. In any event the complaints are not made out. Section 36 merely states the requirements for obtaining a protection visa. The Tribunal gave careful and detailed consideration to the appellant's case. There is no substance in the claim that it failed to consider his application for a visa. Section 65 is presently irrelevant. It deals with the Minister's consideration of a visa application. Section 424A is not applicable to the appellant's complaints for the reasons I have given. The only particularised complaint about the Tribunal's failure to comply with s 424A is not tenable because of sub‑s (3). 16 The final ground of appeal is that the Tribunal failed to "review and consider the appellant's application for the purposes of ss 418(3), 420, 424(1) and 430" of the Act. This is an appeal from the Magistrate's decision and not from that of the Tribunal. Although this complaint appears in the amended application before the Magistrate, there is no indication that the appellant pursued it. Accordingly, it is not an available ground of appeal. Further, it does not appear under the heading "Grounds of Appeal" in the appellant's written submissions in this Court. In any event it lacks any merit. Section 418(3) of the Act requires the Secretary to the Department to give the Registrar of the Tribunal relevant documents in his possession. There is no evidence that the Secretary failed to comply with this requirement. Section 420(2) requires the Tribunal to act according to substantial justice and the merits of the case under review. The appellant has pointed to his various complaints. None has been made out. There is nothing else that indicates a failure on the Tribunal's part to comply with s 420(2). Section 424(1) requires the Tribunal to have regard to any relevant information that it has acquired. There is no evidence that it did not do so. Section 430(1) requires the Tribunal to commit its decision to writing, and specifies the contents of the written statement. The appellant has pointed to no respect in which the Tribunal failed to discharge its duty in this respect. 17 The appeal must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.